Wednesday, 28 November 2018
Health (Regulation of Termination of Pregnancy) Bill 2018: Report Stage (Resumed)
We had a very lengthy discussion on this issue last night and I thank the Ceann Comhairle, who has just left, for his intervention asking for a reasonable and respectful debate. Amendment No. 4 was put down in good faith by Deputy Nolan and I support it wholeheartedly. As we know from the Amarach polls, 44% of those who voted to repeal the eighth amendment said they did not want to have to pay for abortion in Ireland. That is obvious but polls suit the Minister when they suit him and more times they do not suit him. There were attacks on us at the committee and there have been attacks on those who have put down a limited number of reasonable amendments. They were 10% of the total on Committee Stage. On Report Stage, we have 16 amendments of a total of approximately 60. As such, we cannot be accused of holding up, delaying or frustrating this process in any way. As Oireachtas Members, we have the right to put down amendments and deal with them. The fact that there was no pre-legislative scrutiny is all the more reason we had to table them. The Minister requested that we would have no pre-legislative scrutiny. The Adoption (Information and Tracing) Bill was introduced in the House in 2016 by the Minister for Children and Youth Affairs, Deputy Zappone, and it is only now on the same Stage as this Bill. It is clear, therefore, that this is being rushed with gusto. People are trying to intimidate us and rule us out. We are told the people have voted and that we must go with the flow and let the Minister do what he likes and care as he likes. We are doing no more than we entitled to do, namely move the amendments and speak to them. We are entitled to do so with respect and to be respected for these amendments. It is no different to the position with the amendments we tabled to the Finance Bill this week. It is what we are doing with the Social Welfare, Pensions and Civil Regulation Bill tomorrow. It is the same with all legislation. Oireachtas Members have been subjected to totally unfair criticism, including in the media. If we did not do this, in particular in the absence of pre-legislative scrutiny, we would be errant in our duty.
I am not happy either with the attacks made by other Members on us in the media to the effect that we were holding up the debate. I have spoken only at minimum length to raise my concerns in the context of the amendment. Many people have said to me, and I meet a lot of people in the course of my constituency work, that they are concerned about the state of our health service and the way in which this money has been found to pay for the termination and ending of little babies' lives. I spoke already yesterday evening and that is all I will say on the amendment. Anyone is entitled to a view. The people who are for the Bill are entitled to their view and I will not suggest that they should not have one. I want that reciprocated and to see respect for our views in the House. We were elected also and a sizeable proportion of the population voted "No." While more voted "Yes" and we have to respect that, there also must be respect for the views of those who voted "No" and who have raised concerns. Like us, they are entitled to their views and opinions.
I spoke on this amendment last night and I felt that, following a poll that was carried out after the referendum, it was clear that the people did not fully realise that the taxpayer would have to foot the bill.
I raised questions on this last night and the Minister did not answer them. The questions were about the large numbers in the UK who have a second abortion and the many cases of women who have up to eight abortions. I asked the Minister to provide clarity on whether the State would pay for multiple abortions and whether there is a reason for this. It may not always be what it seems and it could be a situation where a person is being abused and is being forced to abort. We are being asked to pay for multiple abortions which is questionable, but we also need to see if there is a reason for that, so I ask if we will work with the person in that situation? It is important that we find that out.
I am also unhappy with the way many of the Deputies conducted themselves last night because it was like bully boy tactics in some cases, but that is there way of dealing with this issue. I will certainly not be frowning, laughing, smirking, nodding and winking about other Deputies' amendments when they move them because they feel they are genuine in what they want to do. I support this amendment going forward.
On the amendment, I was disappointed to hear some of the personal attacks that were made on Deputy Nolan, which were totally wrong, because everybody has his or her mandate when he or she comes in here and everybody is entitled to say what he or she wants to say and move the amendments that he or she wants to move.
Certain sections are trying to box a group of Deputies into a corner and make us out to be something that we are not. The people of Ireland voted the way they voted and I am not allowed to speak on behalf of anybody else but I know I am not generalising when I say that we are democrats, we understand that the people voted the way they voted it and that is it, end of story.
However, what has happened since has been remarkable. As I said last night, the Minister has changed and made so many U-turns at this stage that it is amazing. He is entitled to do that.
The people are now getting something that is completely different from what they voted for. The vast majority of amendments that were moved by Deputies to support the Bill are changing it. Just because we question it and because we want to have legislative scrutiny, which of course the Oireachtas should have, we are being questioned and the big issue seems to be that we are delaying the Bill. Nobody is delaying anything by as much as one minute. This is taking the time it would take regardless. The Minister will be able to bring in the legislation by the date that he has given and debating it is doing nothing to interfere with that. No Deputy here will speak for one second longer than what they should and I am sticking to that as the Acting Chairman will note.
Maria Bailey, Richard Boyd Barrett, John Brady, John Brassil, Colm Brophy, Tommy Broughan, Richard Bruton, Pat Buckley, Peter Burke, Joan Burton, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Joe Carey, Pat Casey, Shane Cassells, Lisa Chambers, Joan Collins, Niall Collins, Catherine Connolly, Marcella Corcoran Kennedy, Simon Coveney, Barry Cowen, Michael Creed, David Cullinane, John Curran, Michael D'Arcy, Clare Daly, Jim Daly, Pearse Doherty, Regina Doherty, Stephen Donnelly, Bernard Durkan, Dessie Ellis, Alan Farrell, Frances Fitzgerald, Charles Flanagan, Kathleen Funchion, Simon Harris, Michael Harty, Séamus Healy, Martin Heydon, Brendan Howlin, Paul Kehoe, Billy Kelleher, Alan Kelly, Martin Kenny, Seán Kyne, John Lahart, Marc MacSharry, Charlie McConalogue, Mary Lou McDonald, Helen McEntee, Finian McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Denise Mitchell, Aindrias Moynihan, Imelda Munster, Eoghan Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Jonathan O'Brien, Jim O'Callaghan, Willie O'Dea, Fergus O'Dowd, Fiona O'Loughlin, Louise O'Reilly, Frank O'Rourke, Jan O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Thomas Pringle, Michael Ring, Noel Rock, Shane Ross, Brendan Ryan, Eamon Scanlon, Róisín Shortall, Bríd Smith, Brian Stanley, David Stanton, Mick Wallace, Katherine Zappone.
Amendment No. 5 is in the names of the Minister, Deputies Coppinger, Barry, Paul Murphy, Catherine Martin, Clare Daly, Wallace, Joan Collins, O'Reilly, Bríd Smith, Gino Kenny, Boyd Barrett and Catherine Murphy and it arises out of committee proceedings. Amendments Nos. 5 to 10, inclusive, 57 and 58 are related, amendments Nos. 6 to 9, inclusive, are physical alternatives to amendment No. 5, and amendment No. 9 is a physical alternative to amendment No. 8. Amendments Nos. 5 to 10, inclusive, 57 and 58, therefore, will be discussed together.
I move amendment No. 5:
In page 6, to delete lines 30 to 37, and in page 7, to delete lines 1 to 11.
As I set out on Committee Stage, I note that the section on offences was placed in Part 1 of the Bill. As I outlined on Committee Stage, this was purely for technical reasons. The Bill was drafted in accordance with recognised drafting convention and legislative practice regarding the structures and arrangement of Acts. There was no other reason to place it in this Part of the Bill and certainly no symbolic or other considerations behind it. Moving the offence provision has no bearing on the substantive operation or application of that section. However, in light of the concerns raised on Committee Stage of the Bill in the Dáil, I asked the Office of the Parliamentary Counsel to look again at the positioning of this section. A number of Deputies made the point that a Bill about access and healthcare for women should not have, as the first thing when one picks up the Bill, the offences section. We asked the Office of the Parliamentary Counsel to look at it again and therefore I am submitting amendments which will have the effect of moving the offences section to Part 3 of the Bill. They propose deleting sections 5 and 6 from Part 1 of the Bill as it currently stands and instead inserting them as new sections, 25 and 26, in Part 3 of the Bill. While this move will have no bearing on the substantive operation of the section, I hope it will address some of the concerns that people raised on Committee Stage about a chill factor in having these sections upfront in the Bill. I will address the other amendments later.
My amendments in this group cover offences. I have tried to ensure that medical practitioners and people who are acting with the explicit permission of the pregnant person are excluded from offences. When we had the Joint Committee on the Eighth Amendment of the Constitution, we had lengthy discussions about the chilling effect of offences and the impact that has on doctors and pregnant people. We concluded that there was a considerable chilling effect from the offences, which were acting in a way that was deeply unhelpful and not necessarily a medical necessity. Medical professionals need to be assured that if they act with good faith and do their job in good faith, they will not be exposing themselves to prison sentences merely for administering healthcare. If we do not explicitly protect doctors, we will continue to see this chilling effect and this could end up endangering women's health. We found at the committee that the chilling effect has an impact and can put women's health in danger.
Amendment No. 7 seeks to ensure that in cases where a pregnant woman explicitly requests someone to help her obtain abortion pills from the Internet or in another manner, that person will not subsequently be guilty of an offence. We do not want to end up with a situation similar to the one we have seen in the North where a woman who was helped by her mother to obtain abortion pills is now under investigation and could possibly be jailed for acting on the explicit instruction of and within the bounds of what her daughter had requested. I believe we have to remove the reference to a 14-year prison sentence. To me, this is just the eighth amendment coming back into the legislation.
The Minister just said that he has taken this from the front of the Bill and put it in the back because in our discussions and we talked about the chill factor for doctors. I am sure he is not misinterpreting anything but I think he is misplacing the sentiment. What we said and still mean is that having it upfront makes this Bill look like it is about criminalising abortions rather than being about women's healthcare. We have always argued that it has to be centred on women and women's healthcare. Taking the chill factor from the front to the back is like closing the front door and opening the back door and letting the wind come through. It does not get rid of it. The fact that there is a 20-year sentence for a doctor or medical practitioner is still a chill factor and it is part of the legacy of what we are trying to leave behind us and what the country said we need to leave behind and move on from. The 14-year sentence is still there and will be still a big negative to the provision of services. In fact, it could lead to putting the brakes on midwives and doctors in maternity care services participating in the scheme.
I understand that these amendments will technically fall if we support the Minister's but the Minister having put his name to our amendment does not mean we will vote against our own amendment. Now is probably the appropriate time to speak to why we want to get rid of criminalisation, which is why we say "delete", and the Minister's name is now on that, though he is moving it to amendment No. 57. If he cannot do that, will he at least try to lessen the impact of criminalisation, including, as proposed by Deputy Clare Daly, the removal of the 14-year sentence? If one combines the 14-year sentence and criminalisation with the compulsion of notifications for all doctors who administer abortions and the serious harm wording in the matter of where a woman's health or life are at risk, I think the Minister is compounding the fear that doctors and medical practitioners of all sorts will have about providing proper, full, sustainable healthcare for women. It was that chill factor and the question of how they could engage with this process that stopped doctors from treating Savita Halappanavar in the way she should have been treated. I appeal to the Minister not to go down this route and to call out those in his Department and those providing the legal opinion that he must do this. There does not have to be a 14-year sentence.
I think Lawyers for Choice have made recommendations in the case of anybody being coerced or treated violently, and having an abortion forced on her, which would be a rare case indeed. Nevertheless, they argue that this can be dealt with under existing legislation, the Non-Fatal Offences Against the Person Act, by inserting two small paragraphs. I think the Minister is aware of them. They state that the following two paragraphs could be inserted:
It shall be an offence for a person intentionally or recklessly(a) to cause injury or death to a pregnant person such as to cause their pregnancy to end; or
(b) without consent to administer any drug or substance to a pregnant person such as to cause their pregnancy to end.Section 5(2): It shall be an offence for a person intentionally to coerce or deceive a pregnant person into having [a termination of pregnancy, as defined by this Act,] against their will or without their knowledge.
Surely that addition into other legislation would do what the Minister is attempting to achieve here and do women of this country a service by removing the chill factor that lingers over doctors and medical practitioners.
This section and this group of amendments are the most important before us in our adjudication of this legislation. Our names are on amendments Nos. 5 to 9 in this grouping. At the core of this is the decriminalisation of abortion in Ireland in line with the ancillary recommendations of the Citizens' Assembly, the Oireachtas joint committee, the United Nations and the World Health Organization. Anybody who even glanced at the proceedings of the Joint Committee on the Eighth Amendment of the Constitution would see that the issue of decriminalisation came up at every single session.
It is reflected in our report, which cited the case Amanda Mellet brought to the UN Human Rights Committee. It found for her and against Ireland. It found Ireland had subjected her to discrimination and inhuman or degrading treatment because of our laws against abortion in circumstances of fatal foetal impairment. It found her suffering was aggravated by the shame and stigma associated with criminalisation. We know the report of the Oireachtas joint committee stated the criminal provision also has the potential to create a chill factor for doctors and clinical risk by distorting clinical decision making. Moving it to the back means it is great it is not at the front but we are not decriminalising abortion.
At lunchtime today, I happened to bump into one of the leading people in the Well Woman Centre, which will be at the forefront of delivering the services. We have received a statement from the Irish Family Planning Association, which will also be at the forefront of delivering the service. These eminently respected and key arenas for women's health are warning us we must remove criminalisation from the Bill. They are not alone in this. The World Health Organization has long called for an end to criminalisation and defines decriminalisation to mean removing specific criminal sanctions against abortion from the law. By supporting our amendments we will be supporting the World Health Organization's position.
I want to draw attention to a statement made in September by the Office of the United Nations High Commissioner for Human Rights. It urged governments throughout the world to decriminalise abortion and enhance their progress towards ensuring the right of every woman or girl to make autonomous decisions about her pregnancy. The statement warned that:
Legal frameworks for abortion have typically been designed to control women's decision-making through the use of criminal law. Many legal frameworks generally prohibit abortion and make it legal only on specific grounds that do not capture the range of circumstances in which women and girls may need abortions. Moreover, strict time limits for abortion often cause women to be in situations where their abortions become illegal. These legal restrictions frequently converge with the practical barriers to effectively deny abortion to pregnant women and girls at the expense of their dignity and well-being.
These are very serious words.
We are at an important juncture in the development of Irish society in terms of women's reproductive health. If we pass this legislation but maintain a criminalisation sanction in it, albeit a slightly watered down one, we will fail any organisation that gave this issue serious consideration, which every one of them has. Even at this late stage, I am pleading on these issues.
The provision is unusually wide ranging. It has the potential to still have a chilling effect. It is broad enough to leave healthcare providers open to malicious reports and criminal investigation with regard to their decisions as to gestation stage or the nature of risk to health after 12 weeks. We do not need them operating in that climate. I know the Minister will speak about good faith and reasonable opinion but they are defences to being prosecuted. They might work or they might not but it does not preclude the initiation of criminal proceedings with all the consequences for healthcare providers this would involve. There is ample medical regulation and other legislation in place to cover such situations. Given that the eighth amendment was removed by popular vote there is no requirement to include this clause. As we pointed out on Committee Stage, the Irish Family Planning Association and others have pointed out new offences should only be included if there is a public interest in addressing a clearly identifiable potential harm to women that would otherwise fall outside the remit of medical regulation. I have not seen any that fall into this category.
Amendments Nos. 6 to 8, inclusive, would become relevant in the event of amendment No. 5 falling. They would send a signal that if we are maintaining some form of sanction we need a clear statement in defence of doctors who might be worried about the chill factor associated with the Government's offences provisions and, therefore, might be deterred from providing abortion care to their patients. It is also there to ensure others, such as friends and family members of pregnant women, who ask for assistance are not criminalised in the process of acquiring pills. Where they act in good faith and on explicit instruction from a pregnant woman they should not be subject to a criminal prosecution. This would protect against somebody being coerced.
I echo the point made that we need to move away from associating abortion with a 14 year jail term. It is being consistently mentioned as the term, which leads people to believe it is an automatic sentence. If we were to do nothing else we should do this. I know the Minister will support the first of the amendments but he must support the removal later of criminalisation or not move its insertion. Obviously, we will oppose its insertion. It is absolutely critical because of all of the empirical medical and legal evidence before us. Even at this 11th hour I plead that we deal with this once and for all in the proper clinical medical setting and not as a stand-alone issue open to any extra criminal sanctions, which is what we are still doing.
I do not want to make accusations but it is a bit of a slight of hand. We will all vote for the same amendment to remove the criminalisation clause but the way the amendments have been grouped means that by doing so we cannot move the subsequent amendments that would at least mitigate the worst effects of the decision the Minister has made.
Fair enough but that is the effect and it is unfortunate. The points have largely been made but the fact of the matter is that doctors seeking to ensure the health and welfare of women in pregnancy situations will now be labouring under an anxiety and fear that if they do certain things they may be guilty of a criminal offence and subject potentially to a 14 year prison sentence. To my mind this is patently unacceptable. It is a throwback and concession to the viewpoint of those who were defeated in the referendum, where the people made a very clear decision they do not believe that women making a decision to have an abortion should be guilty of a criminal offence and that women should have the right to do it. The Minister is retaining a criminal offence and that chill effect of a potential prison sentence.
Sorry, not for the woman but for the doctor. The doctor will be labouring under that anxiety. It is not an acceptable situation if doctors in these difficult, often crisis driven situations, are wondering whether they are guilty of a criminal offence and outside the law if they do this. We know where this has led us in the past. It has potentially disastrous consequences. I really think the Minister has got to reconsider this. As other speakers have said, this is the most important issue before us in terms of the amendments and I really think the Minister should reconsider.
I will be brief because Deputy Clare Daly covered most of the points I would like to have made. This is one of the most important parts of the debate we will have tonight. We cannot ignore the World Health Organization's warning of what keeping criminalisation in a Bill on women's health and abortion can impose on doctors or others, such as a sister or a mother.
If a daughter is approaching the 11th or 12th week and cannot access a doctor because of a potential conscientious objection and things are getting quite difficult, her mother might access a website and seek an abortion pill. That woman, or a father, could then be criminalised and jailed for 14 years.
I will read into the record what the other amendments propose. Amendment No. 6 states:
In page 7, between lines 2 and 3, to insert the following:“(4) Subsections (1) and (2) shall not apply to a medical practitioner acting in good faith.”.
Amendment No. 7 states:
In page 7, line 3, to delete “It” and substitute “Save in the case where a person is acting with explicit instruction from the pregnant woman, it”.
Amendment No. 8 states:
In page 7, line 7, to delete “for a term not exceeding 14 years” and substitute “for a term proportionate to the scale of the offence”.
Amendment No. 9 states:
In page 7, line 7, to delete “for a term not exceeding 14 years”.
As Deputy Clare Daly stated, we submitted these amendments on the basis that amendment No. 5 would fall. However, these four amendments will fall if amendment No. 5 is accepted. I appeal to our colleagues in the Seanad to carry these amendments when the Bill is sent back there and to argue for them to be included in the new section the Minister will create. In the meantime, I ask the Minister to take what we have said on board. The joint committee made this point very clearly with regard to criminalisation. It was probably the issue that was most debated in the committee. Leaving this provision in place will damage the Bill rather than enhance the fact that women will be able to access women's healthcare in a way they have never been able to previously in the history of this country. Removing that section would enhance the Bill and I appeal to the Minister to do that.
The reason I am removing this section is that a number of Deputies asked me to remove it at the outset. I am happy to do that. After the people voted to remove the eighth amendment, I told the House that I felt a responsibility to stick to what we said we would do in the general scheme. These offences were included in that scheme. The Bill provides that it shall be an offence for a person, by any means whatsoever, to intentionally end the life of a foetus other than in accordance with the provisions of the Bill. Officials from my Department and the Office of the Attorney General considered these issues in a number of ways. Deputies have submitted amendments which propose to delete the offence entirely so that the termination of pregnancy is decriminalised. I cannot accept them. In many countries, this matter is covered by law in penal or criminal codes so Ireland is not unusual in providing for offences in law and for penalties to be applied when the law is broken.
A number of Deputies have proposed deleting the subsection which makes it an offence for a person to aid, abet, counsel or procure a pregnant woman to intentionally end or attempt to end the life of that pregnant woman's foetus other than in accordance with the provisions in the Bill. However, criminalising a person who does this is necessary from a policy perspective. The health and well-being of pregnant women are at the heart of this policy. Helping a pregnant woman to end her pregnancy outside of the provisions of the Bill is not in her best interests and may on occasion put her health or her life at risk. One of the primary purposes of this legislation, and the amendment to the Constitution that preceded it, is to eliminate the health risk to women from illegal abortion. The Bill also provides that women can access, free of charge, safe medical procedures carried out by registered medical practitioners. That is an important point.
The provisions in the Bill protect people from forced abortions or an attempt to intimidate women, for example, in a situation of domestic or sexual abuse. A dominant personality trying to forcibly terminate a woman's pregnancy might induce a woman to terminate the pregnancy herself instead of attending a medical practitioner. I accept there is a difference of views on this, but we proposed these offences in the general scheme of the Bill which the people saw in advance of the referendum. It is important that termination of pregnancy remains illegal outside the circumstances in which it is legal. I have taken significant advice from the Attorney General on this matter and I am not in a position to accept the proposed amendments.
We must deal with this from the perspective of where we came from. In the context of the various scenarios outlined by the Minister, there are ample medical regulations and other legislation that would cover those rogue operators and coercers and deal with those issues. The reason it must be decriminalised is precisely because of our history, the possibility of malicious complaints and so forth. The Bill provides for abortion to be carried out in accordance with the provisions of the law. Take the example of a doctor who, in good faith, is examining a woman who may be approximately ten weeks' gestation but who is not sure whether she is within the 12 weeks. If the doctor makes the diagnosis, he or she has hanging over him or her the threat of criminal sanction and a potential 14-year prison sentence. One can state that he can say he was acting in good faith and that he will get away with it. However, he could also decide that the risk is too great and that he does not want to take it. Suddenly, the doctor is concentrating on possible legal penalties rather than on what is in the best interests of his patients.
Similar judgment calls will be impeded for our medical practitioners in the case of the health of a woman, for example, where they are considering serious health risk. What does this mean? The doctor has to wonder how serious it is. That is a big thing and now the doctor cannot concentrate on her health as he or she must worry about the potential legal sanction. It is that serious. This is an extremely important measure to protect women's health. We need decriminalisation. I echo the points made by Deputy Joan Collins. The other clauses minimising the offences can be dealt with in the Seanad if the offences provision does not fall later. Full decriminalisation must be dealt with first.
This is probably the final comment I will get to make on this. This provision will come home to roost in the most dangerous situations for women. I do not believe that it is envisaging somebody forcing a woman to take the pill or forcing her to have an abortion under the ten or 12-week limit, when 95% or 96% of women generally seek terminations. The number of women who seek terminations in the early term is very high. This will come into its own as both a chill factor and a dangerous legal implement when women are at their most vulnerable and endangered. When their lives or health are at risk, when they are undergoing abortions for fatal foetal abnormality or when there are questions about viability is when this will have the most impact. This section is putting the most risk on the most vulnerable women at the most vulnerable time of their lives. Applying the logic of shoving pills down one's throat and so forth is not what this is about. As I said earlier, the Minister has been asked by Lawyers for Choice and others to consider using other existing legislative measures in terms of offences against the person rather than inserting this provision. It must be considered very gravely indeed. We run the risk of not having the obstetricians, doctors and midwives step up to the plate if they think they might become criminals with potential 14-year sentences hanging over them at the most urgent time of the most vulnerable woman's life.
I said from the start of this debate and in advance of the referendum that we should stick with the heads of the Bill. The public made its decision emphatically and any deviation undermines the process we presented to the people. However, I am concerned - I have always expressed this view - about the criminalisation of people. We should always place matters in a context. It might be a vulnerable girl whose friend helps in the procurement of abortion tablets. When they are administered, it could all go horribly wrong. In that context, it is not good for the health of the girl if, by presenting to a medical professional, her friend or colleague could be prosecuted and criminalised for helping her to procure an abortion.
There are downsides to this as well. We must consider the practicalities of what can happen. I accept that there must be a system in place whereby people are not able to provide abortions without criminal sanction in the event that they do it regularly and outside of good faith.
Equally, consider those particularly vulnerable young girls or women from immigrant backgrounds or women without access to major supports who, in the event of this going wrong, may be very slow to come forward for medical assistance because the person who assisted them could be criminalised and sent to jail for 14 years. Even people who have very strong views against this legislation are concerned. The criminalising element with the severe sanction of 14 years was also an issue of major concern for many people during the previous debates around the Protection of Life During Pregnancy Act that we discussed years ago, well in advance of this legislation. While I say in one breath that I do not like any deviation - I accept that it is in the heads of the Bill - I believe that we have to keep an eye on this to ensure we are not discouraging people from presenting to medical professionals if things go wrong, and I put it to the Minister that things do go wrong.
We all agree on the deletion of those lines but we just have some disagreement about reinsertion and where they should go. I do not think there should be any element in the legislation that causes a doctor to think about anything other than the woman who is sitting in front of him or her and who needs to be treated. We have heard enough evidence about the chilling effect of criminalisation and about the stigmatisation. All that, however, is bound up with criminalisation. We will be discussing this aspect with our colleagues in the Seanad when it goes to that House, but at this stage I would encourage the Minister to reflect. I understand fully what was in the heads of the Bill but equally we do not want any part of the legislation to cause a doctor to think about anything other than providing the care, or for any part of the legislation to dissuade any woman or pregnant person from coming forward if they were in need of help.
Deputy Kelleher speaks a lot of sense on this; it is something that needs to be very carefully monitored. This is why we are going to get on to issuing a review clause shortly, which is quite important. To be clear, the Oireachtas all-party committee gave me my instructions in preparing for the referendum and in drawing up the general scheme. The committee asked me to make sure the law was amended to allow for surgical terminations to be legally carried out in a hospital setting and to allow for medical terminations be provided for through the licensing of medications for that purpose and prescribed by a qualified practitioner acting in good faith. The committee recommended that where terminations occur in such settings, no criminal sanctions should apply, and in any case no woman should ever be guilty of a criminal sanction. This is what the Members on the Oireachtas committee charged me with doing as the Minister for Health. This is what we put into the general scheme of the Bill and this is what we put to the people. The woman never commits an offence in any circumstance. The woman should not ever be criminalised. This is very important.
We have come from a situation where termination was illegal in Ireland, except in the narrowest of circumstances when the woman was about to die. We are now in a situation where we will rightfully allow access to termination, without a charge and on a universal basis, to any woman and without specific indication, although there is always a reason, up to 12 weeks. There is a legal difficulty with what some Deputies are asking me to do. They ask if this can be caught in other Bills. I looked at this quite carefully and it cannot. Under section 7 of the Criminal Law Act 1997, referred to by some Deputies, "Any person who aids, abets, counsels or procures the commission of an indictable offence shall be liable to be indicted, tried and punished as a principal offender." Given that the pregnant woman will never be, nor should ever be seen to be, committing an offence this section of the Act will not apply and cannot be relied upon to charge any person who aids or abets, counsels or procures a pregnant woman to end her own pregnancy. I worry that we have yet to find a better vehicle by which to do this. We have had numerous conversations with the Attorney General. Based on those conversations, on the work of the all-party committee and on the general scheme of the Bill, I am not in a position to accept the amendments to remove the offences section. I would take Deputy Kelleher's advice about the importance of keeping this under active and ongoing review.
I move amendment No. 11:
In page 8, line 9, to delete “5 years” and substitute “3 years”.
I do not intend to take any time on this. It is prudent and sensible to review the operation of an Act and that we would not make the mistake of other countries by passing a Bill and considering that we had done our job here. It is important that we check the Act, which is about access and about women's healthcare, is working for women and for the medical profession. I had proposed on Committee Stage that the review would take place after five years. After engaging with colleagues across the House, there was a view that five years was a little bit too long. I now propose an amendment to reduce that to three years. There is also an amendment in from colleagues to specify what the review should do. I understand that my colleagues are very keen to ensure that the information they require is covered in the review. I do not believe that it is appropriate or desirable to set that out in legislation. It could have an unintended consequence of limiting the scope of any future review situation, a consequence which I know we would all wish to avoid. Amendment No. 11 proposes to reduce from five years to three years the period after which a review should be carried out.
I wish to discuss amendment No. 12, which arose out of discussions we had around the current practice. The purpose of this amendment is to ensure that we are a bit prescriptive around what is recorded. It is important. We need proper records, similar to the hospital in-patient enquiry data, HIPE. This will be a new service so the data could give the review some real and tangible meaning. We are all conscious of the vote and that people voted for this new service, but equally we need to make sure that the service delivers for those women. I do not believe we can rely on the data collected and collated to date in the context of the protection of life during pregnancy legislation. It does not give us enough information to be able to inform the service and make sure that women are accessing the service. I am especially conscious of areas where there may be a geographic element to it, for example. We could then look at the data and surmise why there was either a large number of terminations in one area or no terminations in another area.
Having spoken with doctors and legal practitioners, they are very much of the opinion that this needs to be in the legislation so that we can make sure it is collected and collated, and that it is used to give us a realistic picture of abortion statistics and, more important, of the trends. The collation of data will facilitate the improvement of the service. It will make sure the service is meeting the needs of those who need it and it will ensure that any future policy changes are undertaken with meaningful data in mind and with the services informed on that basis.
I support the Minister's amendment No. 11, and welcome the reduction in the review period. However, our amendment No. 12 must accompany it. I reassure the Minister regarding his fears that specifying these elements might limit the type of review. He need not worry about that at all because the amendment states it, "shall include"; it does not state "shall only be" or "shall exclusively". The review must include these things but that does not prevent the Minister from adding in a rake of other stuff, if he wants, as well.
It is important in order to inform the type of review which must be conducted. We are talking about access to abortion. In fairness, points made by everybody on all sides of the House during the debate yesterday demonstrated that Members want access not just for some people but for all women. I am particularly struck, for example, by the document submitted earlier from Disabled Women Ireland in respect of access to this legislation for women with disabilities and so on. It is critical that we would examine this to ascertain whether the legislation is fit for purpose. Crucially, the question of access for women in Northern Ireland needs to be evaluated and affirmed.
It would be hypocritical of us to deny access to women outside the State, given our history and our exporting of well in excess of 100,000 over the years to the UK. That needs to be evaluated and we should specify it. My concern is that these reviews can sometimes be used to legitimise privatisation, for example. This needs to be about protecting a public service that gives access. Data need to be analysed to do that. Our specification adds to the review and makes it the type of review that benefits women and does not limit the service. It should be welcomed. I welcome the fact that amendment No. 12 was not ruled out of order. I thought it might have been.
I do not see how the Minister could argue that the provisions of amendment No. 12 could limit a future review. It is just insisting that certain important indicators of whether women who need abortion services are gaining access to them are met. We are trying to ensure that women who need abortion services have genuine access to them. If over the next three years we discover that, for example, women who need abortion services and should have them are still travelling to Britain, it would be an indication that the legislation had failed and needed to be examined to ensure that additional hardship was not being put on Irish women. Similarly on the issue of Northern Ireland and the recommendations of the Citizens' Assembly, which have not been fully followed through on in this legislation, all of these issues should be examined to ascertain whether the legislation has had its desired effect in guaranteeing the welfare and health of pregnant women and their right to access abortion services. I do not see why the Minister would have a problem with amendment No. 12 and he should accept it.
I support the intent of amendment No. 12 but in practical terms the best data collection is probably served by not inserting this amendment. The section covers the issue, stating that the Minister shall, after not later than three years, carry out a review of the operation of the legislation. The amendment makes some reasonable suggestions as to what needs to be in that review, including barriers to access to service. However, we do not know where we are going to be in three years. Some unexpected issues will inevitably have arisen. I am all for more and better data and comprehensive reports. I am sure that is what will happen.
By prescribing what needs to be in here, while it is all perfectly reasonable and well intentioned, the amendment potentially runs against us. One or two civil servants will be tasked with putting this review together. They will have a significant volume of work to do. Data collection in the system is appalling generally. Some of the areas specified in amendment No. 12 may not be the highest priorities in three years. However, if officials are mandated to report on them it is where people are going to focus, because they have to focus. It is where people reading the report might focus because it has been in the legislation. We might pull focus and resources away from some areas that could become more important.
I fully agree that the report must be comprehensive. It should have the input of the House beforehand to agree exactly what is in it. The best mechanism, when the three-year period is about to be reached, probably would be a debate in Dáil, or at the health committee or an informal meeting with the Minister and whoever wants to be involved. We could do it that way. Providing this level of specificity about what data needs to be included in a review that is to take place in three years is not helpful.
On amendment No. 11, I agree with the Minister about changing the review period to three years. A number of us are glad that the Minister listened on that issue. Five years was certainly the wrong timeframe. I support amendment No. 12. It is a good amendment because God knows we have issues in respect of proper data collection when it comes to healthcare. The specifications set out are not absolute and the Minister can add to them quite broadly. I accept some of Deputy Donnelly's comments that priorities will change and different issues will arise. As the services are put into place, we will find out what issues arise and they can be added to the review. All of these are issues that are going to have to be analysed one way or the other. We are going to have to see how it is working under each and every heading. From a scoping point of view, including this in the legislation might help to focus minds from the outset on the level of detail and data gathering that is required. I will support amendment No. 12.
I want to respond to something that was just said by Deputy Donnelly in support of the Minister. He called for something he did not table as an amendment, which is that when it comes to having the review after three years, as amended by the Minister, we would have the input of this House. If he wanted the input of the House before the review takes place, the he should have tabled an amendment to that effect. Amendment No. 12 has had the input of many Members and it is prescriptive about the review but provides that "it shall include" the elements listed, as was said. We are discussing barriers to access such as criminalisation and the chill factor. We will later discuss other barriers when it comes to whether doctors who avail of conscientious objection will have to report to the Minister that they have conscientiously objected. That is not provided for in the Bill. Amendments providing for access to services from Northern Ireland have been ruled out of order. Let us see the impact of these provisions in three years. Deputy Donnelly thinks we should have the input of the House; this amendment results from the input of a large section of the House, including those of us who are on the joint committee and many female Deputies. We want to see these issues included in the review and there is no amendment that provides for going back to the House in three years.
Amendment No. 12 is in my name among others and obviously I support it.
What is different about this Dáil is that we went through a pretty unique process in advance of the referendum. It is important we leave a marker giving the context of the review. This Dáil will not deal with it because there will be a general election in the meantime. It will be dealt with by a subsequent Dáil and some of us may not be here. It is valid for us to leave a marker of what is intended because we have been through that unique process that included the Citizens' Assembly, the all-party Oireachtas committee and the referendum campaign in which we had very real engagement on the doorsteps. We do not know how the legislation will play out, but these are markers that we at least want to see in a review.
Data are very important. We might even disagree about some of this as we go through the legislation later. More data are likely to be collected on this health service than on any other. I and my successors will lay a report before the Houses annually. Among the numbers and statistics to be laid before the Houses annually will be the number of refusals of reviews under the legislation.
I fully agree that women from Northern Ireland should be able to access termination in this country. Deputy O'Reilly and I had a very good meeting with advocates from the North. They will be able to access it. We have not yet found a mechanism on the eligibility to make it free, as we have for citizens in the Republic of Ireland, but they absolutely will be able to access it. We will have a follow-up meeting with advocates from Northern Ireland when these services are operational in the Republic of Ireland in January.
I know Ministers come and go. Deputy Catherine Murphy is right in saying that elections happen and we all change. For the sake of my successors I want to put on the record of the House that the Oireachtas Joint Committee on Health or the Dáil should agree the terms of reference for any such review. I have no difficulty with that; it is sensible and prudent. I say that on the record of the House so that any successor should have to explain why they are changing their mind on that. I also think it should be an external and independent process. I do not think in primary legislation we should be prescriptive on what that review encompasses for the reasons outlined by Deputy Donnelly.
I obviously proposed my amendment to reduce the period of time for the review from five years to three years. I emphasise that we are not waiting three years to get data or statistics. Obviously a mechanism under the Health Act is available to me to demand any information and data from the HSE at any time. Under the health committee and these Acts I am accountable, as is the HSE, to various committees for keeping Members up to date. A comprehensive, independent review in three years with the buy-in and agreement of all Members of the House on the terms of reference is the way to proceed.
This is not an issue of trust. Nobody is saying people do not trust other people, but there is a problem with collecting data and there is a problem with the existing data. Including it in the legislation will mean that what should be done will be done. The list is by no means exhaustive. Obviously it can be added to as required. The list represents what I and others believe should be a minimum. Specifically section 2(e) proposes reviewing the recommendations of the Citizens' Assembly, which is extremely important. We should not leave it up to chance.
We support the Minister's amendment No. 11. Sinn Féin with others had called for the review period to be reduced in any event.
I listened to the Minister's arguments against amendment No. 12. Obviously we agree with his amendment to reduce the review period to three years. If we do not pass amendment No. 12, very important information will not necessarily be collected to inform us whether women are being left outside this legislation in terms of their access to healthcare.
Deputy Donnelly said that in three years the Dáil can input into what we want included in the review. In three years' time it will be too late to gather the information we need to start gathering from the moment the legislation passes. We need to start to collate the information immediately the legislation is implemented and the services are established, to establish whether the legislation and the services are achieving what we want them to achieve.
Unless the Minister can tell us right now that he is guaranteeing us that all this information will be gathered - I do not really see how he could really do that - why would he not want it in the legislation that we are now committing that this information will be gathered? It should be the responsibility of the HSE and the various people involved in providing the services to log information as to whether, for example, significant numbers of women are finding it difficult to access the services, whether there are barriers, whether women from the North who need the services are able to access them and all of the other possible issues largely related to access and the effectiveness of the legislation. Unless the Minister gives us some other commitment, which he has not done at the moment, we need a commitment that information will be gathered. To wait for three years will be too late. We need the information from the word go.
-----and much more importantly to clinicians and women. Amendment No. 12 is specifying that in three years' time this is what should be done. I am saying that we will do better than that and that we will lay before the Houses a report with statistics and data. I am saying that - this is not a new commitment the Deputy needs from me - the HSE, as the operators of the service, can and will appear before Oireachtas committees to answer questions from the Deputy and his colleagues regularly.
This is a review of the operation of the Act. This should be about talking to doctors, the Institute of Obstetricians and Gynaecologists, and women's advocate groups about how the Act is operating and not reviewing the recommendations of the Citizens' Assembly which at that stage will be relatively old. It is about checking what I believe the people voted for in passing the referendum and what their representatives voted for in legislating is working on the ground.
Much of the data the Deputy is seeking already exist. For example, section 2(b) calls for information on "the number of pregnant people who may require travel to other jurisdictions to avail of terminations of pregnancy". Without being in any way flippant, insofar as people give addresses, we can find out this evening, on the British Department of Health and Social Care website, how many Irish women have travelled to Britain.
I certainly do not do not intend to wait three years before we address the issue of women from Northern Ireland accessing services. Barriers to access to services under the Act are very much at the core of the three year review. The only one that presents a challenge to calculate is the categories of pregnant people who may be unable to avail of services under the Act. We would need some research methodology from an external reviewer to get to the bottom of that.
This is a three year review that will learn from the mistakes of other countries that passed legislation and left it on the shelf gathering dust without checking whether it was working for women and doctors. We will not do that. However, we should not be overly prescriptive. If we were being prescriptive, we would probably have missed a number of the core things that should be part of any review.
I move amendment No. 12:
In page 8, between lines 10 and 11, to insert the following:
“(2) The review under this section shall include a review of:(a) any barriers to access to services under this Act;
(b) the number of pregnant people who may require travel to other jurisdictions to avail of terminations of pregnancy;
(c) the categories of pregnant people who may be unable to avail of services under this Act;
(d) access to services for those from Northern Ireland; and
(e) the recommendations of the Citizens’ Assembly.”.
Richard Boyd Barrett, John Brady, Tommy Broughan, Pat Buckley, Joan Burton, Joan Collins, Catherine Connolly, Ruth Coppinger, David Cullinane, Clare Daly, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Séamus Healy, Alan Kelly, Martin Kenny, Mary Lou McDonald, Denise Mitchell, Imelda Munster, Catherine Murphy, Jonathan O'Brien, Louise O'Reilly, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Thomas Pringle, Brendan Ryan, Róisín Shortall, Bríd Smith, Brian Stanley, Mick Wallace.
Bobby Aylward, Maria Bailey, John Brassil, Richard Bruton, Peter Burke, Mary Butler, Jackie Cahill, Dara Calleary, Joe Carey, Shane Cassells, Lisa Chambers, Michael Collins, Niall Collins, Marcella Corcoran Kennedy, Barry Cowen, John Curran, Jim Daly, Regina Doherty, Stephen Donnelly, Andrew Doyle, Bernard Durkan, Damien English, Frances Fitzgerald, Michael Fitzmaurice, Peter Fitzpatrick, Simon Harris, Michael Harty, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Paul Kehoe, Billy Kelleher, Seán Kyne, John Lahart, Marc MacSharry, Josepha Madigan, Micheál Martin, Charlie McConalogue, Helen McEntee, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Aindrias Moynihan, Margaret Murphy O'Mahony, Eoghan Murphy, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Jim O'Callaghan, Fergus O'Dowd, Fiona O'Loughlin, Frank O'Rourke, Éamon Ó Cuív, Michael Ring, Noel Rock, Shane Ross, Eamon Scanlon, David Stanton, Peadar Tóibín, Leo Varadkar, Katherine Zappone.
I move amendment No. 13:
In page 9, line 9, to delete “section 14(2)(a)” and substitute “section 14(2)”.
Section 14(1) states:
A termination of pregnancy may be carried out in accordance with this section by a medical practitioner where, having examined the pregnant woman, he or she is of the reasonable opinion formed in good faith that the pregnancy concerned has not exceeded 12 weeks of pregnancy.
Section 14(2) states:
A termination of pregnancy shall not be carried out under this section unless — (a) the medical practitioner referred to in subsection (1)has certified his or her opinion as to the matter referred to in that subsection, and
(b) a period of not less than 3 days has elapsed from the date of certification referred to in paragraph (a).
Section 14(3) states:
The medical practitioner referred to in subsection (1)shall make such arrangements as he or she shall deem to be necessary for the carrying out of the termination of pregnancy as soon as may be after the period referred to insubsection (2)(b) has elapsed but before the pregnancy has exceeded 12 weeks of pregnancy.
The requirement that the certifying medical practitioner must carry out the termination of pregnancy is necessary to ensure the process for accessing a termination of pregnancy is clear for the woman and her medical practitioner. The lack of a direct link between the four stages of the process, namely, examining, forming the opinion, certifying and carrying out the termination has the potential to act as a barrier to the woman wishing to access termination of pregnancy. For example, if the law did not require under the section the termination to be carried out by the medical practitioner who forms the opinion referred to in section 14(1), it could lead to a situation where a medical practitioner certifies in his or her reasonable opinion formed in good faith that the pregnancy concerned has not exceeded 12 weeks of pregnancy and after the required three days has elapsed from the date of certification, the woman could be refused termination by a different medical practitioner on the grounds that he or she is not of the required opinion, which could create a barrier to access that none of us wants to see. Furthermore, the law should not impose an obligation on a medical practitioner to carry out a medical procedure on the opinion of another medical practitioner if he or she does not agree with that opinion.
From a legal perspective, I am advised that not linking the four steps in the process would have the effect of breaking the chain of causation necessary for an unlawful termination of pregnancy to be prosecuted effectively. Having set out the rationale for the policy behind the requirement of the legislation, I must note the following points raised on Committee Stage, concerns raised by medical practitioners and discussions within my Department about implementation and service provision.
A difficulty was identified in the section, which we discussed at length, because it would require without exception the certifying medical practitioner to carry out the termination of pregnancy. Should the section be left as it stands, it may create a barrier to access for women in certain cases, where, for example, the medical practitioner is subject to unanticipated events such as illness or other issues which mean he or she is not available when the woman returns for the termination of pregnancy. In addition, rostering issues and practical realities of medical practice in a hospital setting mean that following the three-day period the same doctor may not be on duty when the pregnant woman returns to undergo the termination of pregnancy. In both cases, the requirement for the same doctor to carry out the medical procedure could result in the woman having to start the process all over again with another medical practitioner and also to have to undergo a three-day wait period again, which no one wants to see happen.
It remains my policy that the medical practitioner who forms the opinion and certifies the termination of pregnancy should be responsible for carrying out the medical procedure. I do not wish to create any other mechanism in that regard, but it is important that we acknowledge the practical realities of service provision. I propose, therefore, amendments in this group to the section, which would allow a second medical practitioner to become involved following the three-day period if the first is available.
The amendments keep the safeguards and legal requirements which the section currently contains but aim to clarify the pathways for accessing the service and avoid creating an additional barrier for women trying to access the termination of pregnancy under this section. The effect of my amendments is to provide that where a medical practitioner has formed the reasonable opinion in good faith that a woman's pregnancy has not exceeded 12 weeks, and certified that opinion, and the woman has fulfilled that three-day period a second medical practitioner may carry out the procedure without a further period having to elapse, where he or she has formed the reasonable opinion in good faith that the pregnancy has not exceeded 12 weeks and has certified the opinion. This does not change the grounds but it recognises that following the period after the woman returns to see the doctor, it may not be the same doctor on duty. The doctor may be ill or on leave and we cannot have a situation where a barrier is put in front of that woman.
This tries to respond to the concerns expressed to us as a health committee by the medical profession and concerns which many colleagues have expressed in this House and discussions in my Department. It is a sensible amendment, which recognises the practical reality that when a woman returns to her doctor, the same doctor may not be able to see her and she should not have to start the process all over again.
I will speak to amendments Nos. 33 and 34 in this grouping. The Minister said that we cannot have a situation where there is a barrier but the three-day waiting period constitutes a barrier. There are different degrees by which it does so. It might not be so much of a barrier for a wealthy woman who can easily take time to access her GP, but for a woman who lives in the North who might have to make multiple journeys, it represents a significant barrier. For a woman subject to domestic violence, it will be a barrier that will effectively render this legislation useless. A woman in direct provision might not be able to get out. These are serious considerations.
I reiterate my statement on Committee Stage that the Joint Committee on the Eighth Amendment of the Constitution did not recommend the three-day waiting period. It is a political construct. It was not recommended by doctors, lawyers or any of the politicians on the committee, yet it somehow found its way into the public discourse. While we accept it was in the heads of the Bill and formed part of the discourse, nevertheless barriers to access – I will not speak of cooling-off periods – must be minimised because access is key. We have discussed whether access should be put into the Title of the Bill. Surely we can accept that if we must live with the three-day waiting period, it can start from when the appointment is made, two or three visits to a doctor are not necessary and a requirement of this nature will have different degrees of impact on women, having the least impact on wealthy women who have time, if they are not in a domestic violence situation, and the most impact on women who do not have the financial means. As I said on Committee Stage, ultimately, the test of this legislation will be whether there is a marked reduction in the number of women sourcing tablets from the Internet. If there is not, then this legislation will have failed. If we stick with multiple visits to a GP, we will put an unnecessary barrier into this legislation.
This legislation also has a blind spot relating to women under the 12-week period but in a situation where the three-day wait could take them over 12 weeks. It would be sensible to ensure that if the three-day period is overly burdensome, then we can do what is necessary to minimise the impact of that, if we cannot eliminate it altogether.
The Joint Committee on the Eighth Amendment of the Constitution did not put this in but it was put in. We could probably schedule a rake of debates on how, why and where this happened, however, it was part of the public discourse. I would like to be eliminated completely but the purpose of my amendment is that we limit its impact on access, especially for the groups to which I referred.
I will make effectively the same points. We also support amendment No. 31. It was tabled at Committee Stage but was not successful. The World Health Organization, WHO, has said that waiting periods like this demean women as decision makers, and we ought to keep that in mind. Waiting periods will only lead to delays in accessing treatment. The UN committee on the elimination of discrimination against women also recommended the elimination of medically unnecessary waiting periods for abortion as they pose a barrier to access. The legislation is supposed to facilitate access to abortion services and we should remove any barriers. There is no medical basis for the waiting period, which will particularly hit poorer people, those living in rural, isolated areas and people who may be in abusive relationships.
Amendment No. 34 seeks to waive the three-day waiting period if the woman in question would otherwise be denied a pre-12 week abortion. While we advocate a complete removal of the three-day period, if we cannot achieve that, then surely amendment No. 34 is a reasonable alternative. If a woman decides that she wants to have an abortion and cannot access one here because of an arbitrary barrier to access with no basis in medicine, then she will still have to travel to the UK.
Amendment No. 33 has a similar intention to that of amendment No. 32 tabled by Deputy Kelly. Its intention is to reduce to some extent the negative and harmful effects of the three-day waiting period by ensuring that the clock starts from the time of the appointment, irrespective of how long one must wait for the appointment.
As I set out on Committee Stage, I do not agree with the three-day period and there is no medical evidence to back it up. However, it is unambiguously in the heads of the Bill and, therefore, it is part of what people voted for. If we are applying a principle that says we must stay in line with what the people voted for, inevitably we will sometimes vote for provisions that we personally agree with and sometimes against provisions we personally agree with. This is one of those times. I will support the retention of the three-day waiting period because it was part of the heads of the Bill which people knew when they voted.
I thank the Minister for his clarification on section 13. An issue I raised with him at length on Committee Stage, as have senior clinicians, is that it would have been unworkable for a woman to have to go back to the same GP in any circumstances. GPs get sick, they work in different practices, locums are used, GPs go on holidays and so on. I acknowledge that the Minister has taken this on board. Amendment No. 35, which is not in this group but is related, essentially brings that in and allows a woman to be seen by a second GP after the three days. I acknowledge that the Minister committed to bringing that in on Report Stage and has done so. I will support it, as it is important that if a GP changes, a woman can still access healthcare services.
I will formally move amendment No. 31 and I will refer to a number of other amendments in the grouping. From the outset, Solidarity has pointed out that this will be an unnecessary barrier to many women and pregnant people. We said that it was not discussed in any great depth by the Joint Committee on the Eighth Amendment of the Constitution and any time it was raised, every expert swiftly said that no such delay should be implemented. The WHO opposes these barriers being put in the way of women accessing abortion and healthcare. We have established that it was a political decision, which came after the committee reported, to make it easier for some Deputies to accept the legislation.
However, it was ill informed because no real discussion had taken place about it. This is being done away with in France, for example, where abortion legislation is much older. In any country where these waiting periods apply, they always act as a barrier to the most vulnerable in society - the poorest women and people who live in isolated areas, who may not, by the way, have a GP near them to supply this service and who have to travel. It will hit ordinary working women, who will have to take a half day or a day off work for the first GP appointment, take more time off for the second appointment and then take time off to have the abortion itself, which could involve a few days. We currently have many people in precarious work who do not have official leave or even sick leave, and we are making life much more difficult for them. It is already a difficult situation for people to manage, particularly for those who are working or who may have children, in that they will be asked to make an unnecessary second visit. As has been pointed out, people who are in abusive relationships or controlling relationships will also find it very difficult to get to a GP surgery on two occasions, given they need transport and time on their hands. This is just not needed.
Many of the points have been made before and we will not labour them. People voted in the knowledge that this was in the legislation. However, there was no necessity to put it in legislation. It did not have to be nailed into a law. Once it is nailed into a law, we all know how difficult it is to amend it or change it if we find it is a major problem. It could have been put in medical guidelines as an option for a GP to recommend that somebody needed more time to think, for example. We could all tell our anecdotes about talking to people on the doorsteps but it certainly was not a big feature for the people I spoke to. Even if people were aware of this, what was proven by all of the exit polls at the referendum was that people voted "Yes" to give people a choice. It was a very pro-choice sentiment, probably more so than the Government realised. Trusting the person to make this decision was the overriding point that came back at the doors. Since this has been proposed, we have had the whole situation with cervical cancer and a recognition there has been a paternalistic model of not trusting women, not giving them full information and not treating them as agents with brains and thoughts to make these decisions for themselves.
I will make two final points. This will not just be a three-day delay. The reality is that GP surgeries open five days a week. If a person rings up for an appointment on Monday or Tuesday, they will then have to go back for the second appointment and, as the surgery will be closed on Saturday and Sunday, many people will have two extra days added on to the delay. In addition, doctors do not want this as they know how unworkable their surgeries are going to become. As it stands, there are queues and long waiting times, particularly in urban areas. This is not wanted by GPs as an added burden. Anywhere these waiting periods have been brought in, it has proven to be much more than three days.
Trump and people who are attacking abortion rights all around the world start by bringing in or proposing these kinds of measures. Why do they do it? It is because they want to erode those rights and make it much more difficult for somebody to have an abortion, if that is their own decision. We should recognise that when people pick up the phone to ring their doctor to make an appointment to discuss something like this, they have thought about it; in fact, they have thought about nothing else. I object to the idea that the Minister needs to tell them to go away and think for another three days when that does not apply to any other group in society who wants to access medical care. We should start trusting women and pregnant people to make these decisions for themselves.
If we are going ahead with them, I support the other amendments in the grouping, which at least would make it somewhat easier in practice to access these services.
I want to speak to amendments Nos. 33 and 34. Insofar as I want to challenge what has been said in regard to this being in the heads of the Bill that was put to the people, which got us the vote to repeal the eighth amendment, I want to make the following points. As has been said, it was not a decision or a recommendation, it did not even form part of the discussion for those of us who sat on the joint Oireachtas committee, and it was not a recommendation of the Citizens' Assembly. It came into the political discourse as we were clearly moving towards a referendum and the heads of Bill were then published with this in it. I remember thinking, "Where did that come from? I am quite shocked." The only reference I could remember to a waiting period from the time one would contact a doctor was from the Netherlands, where there is a waiting period of up to five days, although it starts from the time one contacts the doctor to make the appointment.
As has been said, it is making an assumption that no full thought is given to the request that is being made to the doctor, which is pretty patronising. However, let us say full thought was not given to it and that it was just an impulse along the lines, "I will pick up the phone now and look for a termination but I have not really thought it through." The Minister said he envisages a 24-7 helpline that would guide people towards a practitioner who would give them an abortion or deal with their request for an abortion. It is just a thought, but what if such a helpline was geared to say to people who call that they have to get a doctor's appointment and that their request has been noted, that it is 28 November and that in three days' time, 2 December, if they have not had an appointment, at least it will have been noted that they requested one and that three days have to elapse before their doctor gives them the pills they require. That would make sense, given a helpline is to help, so questions can be asked and the person can be referred to a counselling service.
Nonetheless, I can tell the House this will apply in very few cases. It is a big decision in one's life to seek a termination, and it is not something anyone does without thinking about it. This is an obstacle to access. We are going to hear this again and again, just like we did in the last discussion. If we want to create an accessible service for women in crisis pregnancies, then we should not put these obstacles in the way, and I see this as an obstacle. There are many provisions in amendments Nos. 33 and 34 that would allow for the three-day period to be inclusive of when the appointment was first sought. It could be sought by email, by text or by phone call, for example, through the 24-7 helpline. Whichever way it is sought, there are means of recording the three-day period after it is sought.
The measure is cruel and highly political. When we went to the people with this as part of the heads of the Bill, it was not part of the major discussion but neither was it completely clear that the three days would start from the time the termination is sought. That was ambiguous in the heads of the Bill and this needs to be taken into account when one makes the argument that we must deliver on the outcome according to the heads of the Bill. As I said, the heads of the Bill were ambiguous. We need to take cognisance of the fact this did not form part of the discourse of either the Citizens' Assembly or the joint Oireachtas committee.
These are key amendments in our deliberations. They were discussed at length at committee. I want to echo the points made about where this came from. When this was discussed at the committee, to be fair, the Dutch representatives were incredibly good and this certainly did not come from them, so any idea we are basing it on the Dutch model is wrong.
It was designed to facilitate and encourage careful decision making. The Dutch service is very much based on women consulting with their doctors but the woman's decision and input is the key one. No woman makes this decision lightly. When she decides to make an arrangement with her doctor she has already given the issue an incredibly serious amount of thought and we have to see this provision in the context of other provisions and restrictions that are there. It is the combination of those factors that make the waiting period a barrier. It is not like the Dutch service where abortion provision is much broader. It is not on as strict a clock of 12 weeks. The circumstances where they can access abortion are far more broadly available. The decision to implement it here in this way if it is not amended will act as a substantial barrier and other Deputies have made the point that if we are keeping the three-day limit, which is the case, we have to get real on when we say that. It should be the date on which an appointment is requested for all the reasons highlighted, including the geographical inequality, the problems in our health service, the difficulty in getting a doctor's appointment and all the rest. That is a reality and by combining that with the provision as currently constructed the clock could tick and women who are in danger of exceeding the 12-week limit would be in a situation where they are forced to travel or access an unsafe abortion which was one of the key situations that people in putting forward this legislation did not want because it causes delays and delays mean harm. It is critically important that it be the date on which the appointment is requested.
Amendment No. 34 is key also because it states that unless the three-day period is overly burdensome to a women, including because it might contribute to her exceeding the 12-week limit. This is critical in the context of those vulnerable groups. I used the example last night of the challenges for deaf women, that the helpline, the phone option, is of no value to them. A website is not of much value either when a large chunk of the country does not have access to broadband and all the rest. It is still not good enough. When a deaf woman needs to see a doctor there is the added burden of procuring an Irish Sign Language interpreter to go with her. There could be a significant shortage of qualified interpreters available, and an even smaller number who are experienced in a medical setting which is difficult. The woman may not want to bring her family along for privacy reasons. She may live in a rural part of the country where it is even more difficult to get a sign language interpreter and not to mind all of the other barriers. In circumstances like that, there has to be an option for a waiving of the three-day period if there is a risk of it going over the 12 weeks. I am particularly worried and I would hope the Minister would say how he envisages the situation of a woman in a domestic violence scenario or one who is coming from a remote direct provision centre is to attend the second appointment after three days. The Minister kind of led us to believe on Committee Stage that section 12 might be used to waive the waiting period but we need to put that on the record because there has to be a facility for waiving that period. Otherwise we are in danger of forcing people to continue to travel who are at that juncture.
I want to speak to amendment No. 32 in my name. It is very similar to amendment No. 33. The Minister should listen to the previous speakers. I agree wholeheartedly with what they have said. The three-day period was in the heads of the Bill, we have to accept that. How it got in there we can possibly debate another time. It is a barrier for all the reasons that have been stated. If we have to stick to the three-day period, my amendment proposes that we consider the period in which the woman makes the arrangements to attend the medical practitioner, when the clock begins to tick.
I know it was in the heads of the Bill and the public voted on it. I am not of the opinion that, while it was in the heads of the Bill and the discourse at the time, it was in people's minds that there was an absolute doctrinal three days. It would be within the spirit of what was proposed if my amendment or, indeed, amendment No. 33 – I am not hung up on which amendment is passed – was accepted. It does not change anything that the legislation and heads of the Bill proposed.
There are many practical reasons the Minister should accept one of these amendments. Many women find themselves in vulnerable situations, where they may, within a fairly defined period, have to create a circumstance where they can start the clock ticking by making arrangements for this procedure. There is a range of reasons they might find themselves in that situation. I have met many of the doctors' groups which are in favour of this legislation but in certain parts of rural Ireland, there will be geographical problems with provision of service from day one, for many reasons which I will not go into here. It is going to be quite difficult for some women, some young girls and some people in vulnerable situations to adhere to this requirement. That is why it is necessary, if we are going to stick to this three-day period - I believe is a barrier but it is there and was in the heads of the Bill - that we at least accept one of these amendments to ensure the clock can start from the time they make their arrangements with the relevant doctor. We will be treating young girls and vulnerable women in many different circumstances very badly if we do not do that.
This does not transgress what we put to the public in the heads of the Bill. It very much fits within the demarcations on which this was put to the public and on which it voted. The Minister should be comfortable accepting this sort of amendment.
I am in a slight dilemma on this issue because I have said we should stick as closely as possible to the heads of the Bill published in advance of the referendum. The Oireachtas Joint Committee on the Repeal of the Eighth Amendment of the Constitution did not make a recommendation on this. To be honest with the House because I would like to be honest in this debate, and I think we should all be honest about it, this was inserted primarily to address concerns of the Tánaiste and Minister for Foreign Affairs and Trade, Deputy Coveney, last March. He is entitled to that concern because this is a very difficult issue. It was inserted for that reason alone. There is no clinical or other evidence to suggest why it could be in there. I distinctly remember at the time that issue being raised on several occasions by the Tánaiste and subsequently the three days counselling was floated and now we have the three-day cooling off period, which was in the heads of the Bill. That is why it was in the heads of the Bill. There may be other views on the other side but I am fairly certain that is the reason. Whether it was in the heads of the Bill or not, it will act as a barrier. Some people may have wanted it in to act as a deterrent. It will certainly act as a barrier for several reasons. Women or young girls who find themselves in a crisis pregnancy and a very vulnerable position may have difficulty going to the GP twice for several reasons. First, if the GP in the surgery a woman in a rural area normally goes to is a conscientious objector, she may have to travel a long distance to a GP who is not a conscientious objector.
It would mean taking time off, finding someone to mind children and travelling long distances. That is a simple example of the practicality of the three-day wait. The other issue is that of vulnerable women, namely, women who may be in very abusive relationships or who may have chaotic lives where one day just rolls into the next. Given that chaos, they may not be able to organise themselves to attend a GP service on the third day or close to it.
There are many reasons this might act as a barrier, even though it was put in to act as a deterrent. Those are fundamentally different. I am very concerned about it. The fact it was in the heads of the Bill suggests that what was put should be passed. The review, however, will have to be very clear in assessing this particular issue. If we continue to find that women are procuring abortion pills online on a continual basis, this will evidently have been a barrier to people availing of services. I expressed concern about the three day provision when the heads of the Bill were published, but I accept that it is there and do not want to deviate from it for the reasons outlined. People on both sides of the debate will simply rerun the campaign itself whereas we have to accept the verdict of the people and try to implement what was put to them. To be helpful and honest, that is why the provision is there. It is not there for any clinical reason that I heard listening to many hours of professional evidence presented at the committee. Nothing flowed from that to suggest this was a good idea. It was never really mentioned by people advocating for women's health or by doctors who care for women in obstetrics and gynaecology. For that reason, I have major concerns about it. There is a three-year review, although there is nothing to stop the Minister coming to the House next month or next year to amend the legislation in advance of a review. I record the fact that I have been very uncomfortable with the inclusion of this provision in the heads of the Bill and with the reasons that was done. However, I am purist about the legislation we put on the Statute Book being as closely aligned as possible with the Bill as published in advance of the referendum.
I refer to amendments Nos. 32 to 34, inclusive, and the 72-hour provision. On 26 May, the people voted to repeal the eighth amendment and provided the Oireachtas with the opportunity to legislate for the termination of pregnancy. When the people cast their votes, they had the heads of Bill to guide them. They stated clearly that there would be a 72-hour waiting period before an abortion could be carried out. It is irrelevant why that was promised or who promised it. It was in the heads and that is what is relevant. The 72 hours were referred to in some instances as a cooling off period, but this was put forward by the Taoiseach as a safeguard. Its inclusion in the heads of the Bill was the important point because when the people voted on 26 May, they were guided by what they saw in those heads. The removal of the waiting period would mean the Government misled the Irish people deliberately on the safeguards during the referendum campaign. Many people could be described as having voted by way of a soft "Yes". They passed the vote on the basis of the guarantees provided by the Government. The Government has to be held to its word. There is a great deal in the Bill with which I do not personally agree but I am a realist and I realise that when the people voted, they did so according to their conscience based on what was contained in the heads of the Bill. Those heads included a 72-hour waiting period. No removal of the waiting period should be permitted.
I do not like the three-day waiting period. It is not something I would have included in the Bill. As other Deputies have said, however, it is part of what was put before the people and voted on. There are many aspects of the legislation of which other Members do not approve, but that is what was voted on. We have to be consistent as we move through this process. The three-day waiting period does not serve the interests of women. It serves to placate some of those who are more concerned about having services at all. As has been said, however, it was part of what was put before the people in May. No woman comes to a decision to request a termination lightly. It is not a decision that is taken at the last minute or without have considered the situation. However, the provision suggests that one needs three days to cool off because one does not really know what one is doing, does not know one's own mind or has not really thought about it properly. It suggests that if one has three days to think about it further, one will change one's mind. In my view, when one has come to the stage of asking for the service and for help, one has thought about it and knows what one is doing. One knows one's own body and mind and has one's own reasons for wanting the service. As such, the review will be important. We must consider sections like this in particular in that context as they may have a very negative impact on women.
I refer in particular to the amendment to which Deputy O'Reilly spoke and the potential for the three-day waiting period to be overly burdensome on some women. There will not be many cases of it, but it is possible that there will be women who, for whatever reason, find out and make that decision very late and close to the 12-week mark. It is possible in those circumstances that the three-day requirement will put them over the 12 weeks, thereby precluding them from accessing services in the jurisdiction. It is one of the potential consequences for women. This provision suggests somehow that women do not know what they are doing when they request the service and that if a woman has a bit more time to think about it, she might change her mind. It undermines the validity of her decision in the first place. It is insulting to suggest that a woman has not thought about it properly before she makes that call or sees her GP.
However, I understand the concerns on the other side of the debate and I understand that some people genuinely believe that with more time to think, one might change one's mind. I understand why the three-day waiting period was requested. I appreciate fully and acknowledge that it was voted on and formed part of the heads of the Bill. For that reason, I support the position of Deputies Donnelly and Kelleher that we have to pass legislation that is very much in line with what was before the people in the referendum.
When witnesses from Holland were before the all-party committee, they outlined the kind of care available in their country. Some of the very good ideas they brought to the committee were helpful, in particular in relation to ancillary measures such as those around unmet contraception needs. They were a very good set of witnesses. The matter of the waiting period came up in the context of a discussion with those witnesses.
I particularly remember asking how that works because I was trying to visualise somebody from this jurisdiction who had to travel and went to the Netherlands. How would that practically happen for them? Would they arrive in Amsterdam, turn up at a hospital and wait for three days? We were absolutely assured that it did not work like that. The way it worked was that it was from the date where the contact was first made, be that a phone call or the first time an appointment was made. That is what we were told happened and there was good reason for us to ask that kind of question because we obviously have women travelling from this jurisdiction.
I see no good reason to include a three-day waiting period and it is part of the reason why my name is on some of these amendments. If it is being relied on as the origin of this idea, it should similarly be relied on in how it happens in practice. It happens in practice in the Dutch experience when people make an appointment. That is what amendments Nos. 32 to 34, inclusive, are reflecting. They are accepting that if the three-day waiting period will not be dropped, there are a set of criteria that we can include in the Bill and they are very reasonable amendments from that point of view. There are not just difficulties in accessing primary care services in terms of conscientious objection but as the Minister knows, there are real difficulties in the availability of GPs and the length of time that it takes to get an appointment and this is an unnecessary imposition. If we are using the Dutch experience, it demonstrates to us that the three-day period is from the time that the appointment is made.
This three-day rule presents practical difficulties to the women, which have been outlined by other Deputies, but it also presents practical difficulties for the doctor. When we had a hearing on guidelines in September, the experts who gave evidence could not present any international evidence on why there should be a three-day waiting period. When the Minister is responding, he might outline what he feels the purpose of that three-day period is, because there does not seem to be any medical evidence to support it.
The other practical difficulty is the question of when it starts and when it finishes. I know the Minister has mentioned that it may be that six o'clock on a Monday evening and nine o'clock on a Wednesday morning would fulfil the three-day period, but that also presents practical difficulties, because how will that actually be monitored?
The Minister must also understand what happens in a consultation. When a woman presents to a GP to discuss an issue such as this, a substantial discussion and consultation are carried out. It is not something that happens in the space of two or three minutes and it is quite often a prolonged consultation. That is an important point because if it is being suggested that the waiting period starts when a phone call is made or a text sent to a practice, that is not practical because it calls confidentiality into issue. Who is the woman sending the text to or leaving the message with? She might be leaving the message with a secretary and what is being discussed is confidential information which cannot be discussed with non-medical personnel. Those are the practical difficulties of it but the issue of confidentiality is also so important. If there is to be a waiting period, the starting period needs to be a conversation with the doctor who will be in charge of providing the termination. It should be a consultation and not purely a conversation with a member of staff or a text.
Within the medical profession, there is the well known concept of a deferred prescription. For example, if a woman comes in and wishes to have a termination and the doctor is happy that everything can be certified, the doctor can issue a deferred prescription and tell the woman that if she is not sure or if there is any uncertainty about it, she does not have to cash the prescription in today or tomorrow, but that she has that prescription, she can use it at her discretion and she should contact the practice if she is going to defer it for a period of time. There does not have to be an instantaneous decision making process.
Perhaps the Minister will expand on the purpose of the three-day rule but there is much discretion within the consultation on when the taking of the medication is triggered. It is not a one for all decision that has to be made right on the spot.
The three-day rule has no international evidence to back it up. It presents a barrier to the woman and to the doctor and it interferes with the process of what we are trying to do, which is to deliver a safe and timely termination.
I was not a member of the Joint Committee on the Eighth Amendment of the Constitution but I am well aware that this issue had been discussed, although it did not form part of any recommendation. However, the 72-hour period was clearly part of the Heads of the Bill. I disagree with comments made by Deputy Kelly when he said that he felt that it was not a substantial issue in the referendum. It is difficult for any of us to try to second guess what people voted for because in reality, there was a huge spectrum of reasons why people voted. Some wanted a very liberal regime of abortion, others wanted a very restrictive regime of abortion and some did not want abortion at all and that was the whole spectrum.
To suggest that this issue of 72 hours was not important is wrong. It may not have been important to some people, but I am certainly aware that it was a significant issue for a number of people. It appeared and presented in the Heads of the Bill and for people who wanted to see termination in controlled and limited conditions, this 72-hour period was not to be seen as a barrier or an obstacle as portrayed by Deputies earlier. The other side of the coin was that during that 72-hour period, the woman in question would not just be left there, but that other options, advice, counselling and supports would be made available to her, which she may not have had the option to consider or access beforehand, and it was taken in that context.
To try to second guess what people thought is wrong. It was clearly part of the debate and it was clearly a significant issue for a number of people although maybe not all people. It is not a question of just saying that if we delay it for 72 hours they might change their mind because that was not what people were thinking. They were thinking that the 72-hour period was to afford an opportunity to look at other alternatives, advice and supports.
I disagree with my colleague Deputy Kelleher when he said that if abortion pills continue to be sold online in Ireland, it will show that this legislation has failed. That is too simplistic a view because all sorts of medications are online and that is a different debate and I would not go there, but I concur with Deputy Kelleher when he clearly indicated that the 72-hour period was part of the original Heads of the Bill and it was hard for him to do so because he disagrees with this. It is imperative that it stays because that is what the people expect to see from this legislation.
I directly disagree with the previous point. I and many other Deputies in the House canvassed throughout the campaign for weeks and not once in the thousands of doors upon which we knocked did the issue of the three-day waiting period come up. The issue raised was always the substantial one, the issue of whether there were circumstances in which it was justified to have a termination or whether people believe women had the right to choose. On the finer detail we are discussing around the three-day waiting period, not once did I hear that come up. I am not saying that because it suits me to say it. I am telling the Minister as a statement of fact that I never heard it discussed in the course of the campaign. I do not believe that particular point had any bearing whatsoever on the votes that were cast. I do not believe for one second that to question this and to propose amendments that would delete this three-day waiting period is somehow flying in the face of the democratic decision that was made by people. It is paternalistic. A woman might go to the doctor uncertain and she might say she wants to talk it through and think about it or she might say she has thought about it and wants the abortion. The idea that the State will enforce a three-day wait on a woman in that difficult circumstance, whatever her thoughts might be about it, is paternalistic and wrong, and I do not see any justification for it. Deputy Harty asked a very good question of the Minister, namely, could he please explain what the rationale for it is? I cannot understand the rationale for it. I do not believe there is any evidence that it serves any useful purpose and I do think it is a concession to people who are essentially trying to deter women from having abortions. I am very happy to support the idea that we remove that completely and I do not see any problem with that.
However, if that does not happen, and I suspect it will not, although I would be interested to hear what the Minister has to say in terms of trying to explain his support for enforcing this three-day wait, and if he is going to persist, then he has an obligation to seriously consider the other amendments. What is his answer if that three-day waiting period takes the woman over the 12 weeks? That would very wrong and very unfair to women if that were the case. I do not believe it can be justified. The Minister certainly needs to answer that question about what happens in that dilemma and if he cannot answer it, he has no choice but to support amendment No. 34.
Similarly, regarding amendment No. 33, all the obvious practical difficulties have already been presented to the Minister. Unless he has good answers, and I do not think there are good answers, we know there are difficulties in getting GP appointments and that money, geographic location, disability or difficult personal circumstances for the woman involved can be an issue. They are all real practical problems and impediments that will create barriers for women in a difficult and vulnerable situation where they do not need barriers, obstacles and further difficulties heaped upon them. If the Minister insists on the three-day period, he has an obligation to consider the issue of it being from the point at which contact is made with the doctor and the appointment is made rather than insisting otherwise because, effectively, then, it becomes not a 72-hour period but quite considerably longer than that in many circumstances, and that is unfair.
I want to comment on the 72-hour waiting period and to express my opposition to it. I believe it should be removed from the Bill. There is no medical evidence whatsoever for this provision and no clinical indication for it. It is not an evidence-based provision. In my view it is a barrier and it will be used as such for access, particularly for rural women and women who are in abusive relationships.
Another factor is that GP surgeries primarily operate now on a five-day week basis. There may be consultations on a Saturday morning for very urgent cases but there is effectively no weekend cover. It is also a fact that there are no same-day appointments in GP surgeries, certainly not where I come from. One could be waiting for two or three days for a GP appointment. Also, particularly in rural areas, it could be the case that the local GP is a conscientious objector and a woman would have to travel quite a distance to a different surgery for a consultation.
We must remember that provisions of a similar type have been dropped in other jurisdictions. There is also the question of when does this 72-hour period start and when does it finish. It is impractical, not evidence based and will be used as a barrier. I believe it should be removed.
I, too, was a member of the committee and like most other members, I attended all the hearings and listened to the submissions made by the various witnesses. The origin of this item in the Bill is that the committee sought advice on what applied in other jurisdictions. It transpired there was some national criticism that an attempt was being made to bring in legislation here which was equal to that available in the UK, where there was virtually no restriction. It also transpired that in a number of other European countries there was a time for reflection. In the Netherlands and in Germany the length of time was greater. It was five and seven days in some cases. As Members will recall, I felt that was a good idea for the reasons put forward by those witnesses.
Contrary to what some people say, it was in place to assist women, particularly those who felt threatened and were in a vulnerable situation where they might be ill at ease with their siblings or whatever the case may be and that they needed to have a discussion. The change came after the referendum when the medical practitioners then said there was no necessity for it and indicated that they were not in favour of it. That was after the referendum and it was too late to say that then because a clear indication had been given to the voting public, and some of the Members present were at the meeting at the time the decision was taken to reduce it to three days from five. I went along with that at the time, notwithstanding the fact that this applies currently in other jurisdictions in Europe.
I hate to disagree with my colleague from the southern hemisphere but I can assure him that it does apply. Otherwise, there was no necessity to go along with it. I have a total recollection of the discussion that took place. Equally, various people have spoken - I am sure in good faith - about what the public asked them. The public asked me if this would be the case and that reassured some members of the public. Other members of the public were not in favour of it but that was put into the public arena before the referendum, and nobody can deny that. On that basis, I strongly urge that it be retained because one thing is certain: we as legislators cannot afford to break the trust with the public. There is no use going into the public arena and saying we will do something about this - after a long drawn-out debate such as this one - and that we will include a period of reflection in the legislation for the benefit of all women, if we do not do it.
Incidentally, the Dutch representatives at the time said that contact with the patient was beneficial from a counselling point of view. It was felt by them at the time that it was beneficial to the woman and the legislation with regard to making the legislation relevant and meeting the needs of the people. I have no hesitation in saying that was what I understood to be necessary and in line with the general thrust of the discussion. I was only one member of the committee but I know what was said since I was there.
It has been mentioned here that the three-day wait was brought in as a political sop to a certain extent to the Tánaiste, Deputy Coveney. That is quite obvious. It was an effort to get the Tánaiste over the line with regard to a Bill that he probably did not agree with at the start. There was a question about the rationale for this three-day wait. The rationale is that there are two lives involved in each pregnancy. The Bill says that. An abortion will end one of those lives forever. It is a life and death situation, and therefore time needs to be taken to make a decision. It is also understood that crisis is often the worst time to make a lifelong decision. In an effort to offer support, help and advice, those three days can be beneficial with regard to making a decision. People have asked what the medical evidence is for this three-day wait. The Joint Committee on the Eighth Amendment of the Constitution heard evidence to say that most abortions do not have medical reasons. The majority of abortions are for socio-economic reasons, not medical reasons.
One thing that greatly disappoints me with the debate we have had over the past while is that so many people, especially on the Government side, have said that they are pro-choice but the economic policies they are pushing have forced many women to feel that they have no choice. Some 19 women who gave birth last year were homeless. One can imagine, if one was homeless and pregnant, the feeling one would have with regard to one's ability to proceed with that pregnancy. I imagine most women feel that they do not have a choice whatsoever. It is also disappointing that in all of this debate, there has been little effort to focus on the socio-economic causes, to try to fix the economic pressures that so many mothers feel that they have and that they cannot proceed to give birth to their child. There is no real effort in this debate to give confidence to mothers that they will have all of the necessary socio-economic supports to make a real decision on this issue. That is disappointing.
I was a member of the committee and my recollection is that the only discussion on the three days was when we had the Dutch delegation in. I do not think we had any real discussion among committee members as to whether it was a good idea. If it is to be there, I cannot see any practical reason for bringing the woman to the doctor twice. That is why I support either amendment No. 32 or amendment No. 33. Those relate to the three days starting when she first makes the arrangement. The purpose of the examination is for the medical practitioner, having examined the pregnant woman, to determine in good faith that the pregnancy concerned has not exceeded 12 weeks. There is no reason that the three days should be after the examination and that they should not start from when she first makes contact. I do not see any practical reason to bring her back twice. There are obviously economic and other practical reasons why going twice would cause difficulty. Deputy Kelleher spoke about where there are conscientious objections and one does not have many alternatives. That can be difficult because the woman may have to travel far from home. Assuming that there will be a three-day period, which seems to be what has been determined to happen, it seems to make sense to have it start at the time when the woman first contacts the doctor's surgery to make the arrangements.
I thank everyone for their contributions. I know people on both sides of the debate have strong feelings on this issue. I feel that we have to stick to what is in the general scheme of the Bill. I remember one of the big reasons and main arguments leading "No" advocates had for campaigning was that one could not trust politicians. They said this was the draft law but that if given a mandate, politicians would do something completely different. They said politicians would provide reasonable discussion and a deliberative process but would change their minds as soon as people voted "Yes". I have no intention of being one of those politicians. The Bill that I proposed in March, which was approved by the Government and published in advance, is the legislation that I told the people I would endeavour to enact if they voted "Yes". People in this House are within their rights to try to amend that legislation. I fully respect that but I feel a responsibility to enact legislation that is not substantively different from the draft general scheme.
We made some changes to try to improve the operation of this. As Deputy Healy referred to, it was 72 hours in the original scheme. That does not work for many reasons, so we changed that to three days. I also clarified on Committee Stage how the three days would start, so the issues Deputy Coppinger mentioned are not as stark with regard to it not being three full days. I do not believe it runs over the number of days but Deputy Coppinger believes it does. Deputy Daly raised the issue of what happens if a woman turns up in a particularly difficult situation. The Deputy specifically raised domestic violence. We discussed this at the committee. We also discussed it in a meeting with the Chief Medical Officer. He was clear and I am clear that there are emergency provisions in the Bill which will be used by doctors in accordance with their own clinical discretion. This legislation will be kept under review. I will run out of time to talk about the Dutch model but the way in which people describe it is not my full understanding. If I get back in, I might outline it. They have a five-day waiting period as a minimum. We are proposing three days.
On the Dutch model, one thing they have in Holland is compulsory non-ethos-based sex education from an appropriate early age onwards. Those here who have a difficulty with legislation for abortion but simultaneously complain that not enough is being done about socio-economic policies will, I assume, support recommendations from the Citizens' Assembly that will bring in free contraception and a non-ethos-based compulsory sex education system. I assume that would the logic of somebody who is concerned about socio-economic issues.
Deputy Harty raised an interesting point and I would like the Minister to address it. With regard to section 14, I think Deputy Harty was asking if it is necessary to bring the pregnant person back in front of the doctor twice. Can a doctor see a person on one day, prescribe ahead and tell that person to take the prescription on the third day, then call the doctor to say how she got on? The doctor can keep an eye on the patient from there on. Is it possible to do that in the context of this legislation? It is an interesting question coming from somebody who is at the coalface of delivery of general practitioner, GP, services and understands better than most of us how difficult it is to get GP appointments in a country that has a ratio of GPs to population that is probably lower than most of the rest of Europe. We have a crisis in that aspect of our health service as well as everything else. Will the Minister address that in the context of best international practice for abortion services, which is having them take place as early as possible?
I know the Minister has said he will elaborate on the decisions. We have gone over where it came from and know where it did not come from. It was there and I do not want to disagree too much with people. It came up at the doors during the referendum. We talked to people about it. Some people loved it and some people hated it but it was certainly a feature.
That said, I do not know that it changed anybody's mind. People were curious about how it would work. We have outlined the reasons we think it will be difficult. We have outlined the fact that barriers to access will not be helpful. There are women in particular circumstances, and I have mentioned domestic violence, women in direct provision and women who live in the North, and I hope we will come away from this evening with some sort of understanding as to how they will be able safely to access the service. I respect what the Minister has said with regard to the emergency provisions but realistically speaking it would probably be better if they did not have to access the service through them or, indeed, have that access at the discretion of the doctor. That is probably not a good idea.
I do not see why we cannot start that time period from when the appointment is made. I do not know that people should necessarily have to state why they are making an appointment to see the GP if they do not feel comfortable doing so. Certainly there will be no difficulty with stating it is the reason for an appointment with the Irish Family Planning Association or the Well Woman Centre.
How the 72 hours is calculated is good because it minimises the time but we would be dishonest if we were to say anything other than this will act as a barrier. We should be trying to eliminate those barriers so access to terminations is free, safe and legal.
It is important go back and state amendments Nos. 33 and 34 accept the three day provision. The Minister's concerns about giving false commitments are not appropriate in this context. I want to say again with regard to the point on the Dutch model made by Deputy Catherine Murphy that the people we spoke to were very clear. We asked how could an Irish person avail of it if there is a five-day waiting period. We asked whether Irish people would have to book a hotel in the Netherlands for almost eight days, with five days before and a couple of days afterwards. We were told that when they get there five days after the first point of contact they can have the termination. It is a real five days.
For all of the reasons outlined by the other Deputies, in Ireland three days in the context of the other provisions will not mean three days and could provide a barrier. In this context I plead with the Minister, particularly on amendment No. 34. I heard what the Minister said about the emergency provisions, and I get that in the case of a woman escaping a domestic violence situation or a woman in direct provision a doctor can state it is an emergency, that the woman clearly does not have the ability to return within the time and that he or she will make a call under the emergency provision to waive the three day period. That is fine but there is probably only a small number of doctors who have this confidence. They are experienced doctors who are prepared to take that risk. We had a discussion on Committee Stage about how younger doctors might not be so confident to make that evaluation and take the chance. Therefore, given that it is only a small number of circumstances, the provisions of amendment No. 34 would mean it could be waived if there is a risk it might exceed the 12 weeks. Essentially, the Minister is stating it is trying to do the same thing. However, it would make it easier for doctors.
We have debated this at length but several points should be put on the record because this provision in the legislation could prove to be very problematic for many people and it is important to recognise this on Report Stage. People did not vote on the three day waiting period. I know the point being made by Deputies but people voted to repeal the eighth amendment. There was a piece of legislation and people might have agreed with some parts. In general, the big bullet point in bold big font was 12 weeks. That was the big debate. I do not think the idea of making people wait three days was a huge factor.
In actual fact, the parliamentary committee did not accept all of the recommendations of the Citizens' Assembly. It was not willing to go that far. The Citizens' Assembly was made up of 99 ordinary people selected from an opinion poll so using logic we can deduce the people are ahead of politicians on this entire issue. If this provision had not been there the referendum would have been passed anyway.
In terms of people voting, I certainly did not know for sure that two visits would be involved when I spoke to people about it. I agree with what people have said on it being a three day waiting period and not two day visits for a woman who is pregnant. This is the way it has worked out. It is a pity this was introduced to appease some politicians because women will suffer. I know the bind the Minister is in but he could have implemented it in a different way.
I ask the Minister to listen to the debate. All of the people who spoke in favour of this, probably bar one Deputy, are against abortion so of course they are in favour of this. This seems to be about punishing women and making it as difficult as possible for them. These types of waiting periods are being introduced in the US by very conservative religious fundamentalist Republican Trump-type people. We have just introduced it in a state of the art Bill, which is a pity. We definitely need to agree this will be reviewed if it becomes a major problem.
I have said previously in the debate that I believe the will of the people should be implemented. There were lots of issues in the debate. Many people had various issues and a lot of discussions and points were brought up. I have to say the Irish people were extremely well educated as to what exactly they were voting on. Yes, they were voting on an amendment to the Constitution but they were also voting on that amendment in the knowledge that, by and large, Members of the Dáil had said if the referendum was passed the draft legislation put before them would be the basis for the change the people made. As this was part of it we would be rightly accused of not doing what was put before the people and what the people agreed to.
It is true, as Deputy Coppinger said, that not everyone might have supported this bit or that bit of the Bill but not everyone who voted "Yes" supported all aspects of it. By the way, not everyone who voted "No" was opposed to every aspect of the Bill put forward either. It was a very nuanced decision by the people and, ultimately, a compromise was put before the people and debated. Overwhelmingly, whether I or others like it or not, the public voted for it. It is incumbent on us at this juncture, with the first legislation introduced after the referendum was passed, to execute faithfully what we can discern to be the will of the people as expressed in the referendum. It is a political will rather than simply the straightforward legal will of the people, which was to amend the Constitution. The political will of the people was certainly evidenced by their listening to and taking part in the debates. As someone who spoke on the media during the referendum I have to say our broadcast and written media did a fantastic job. I had no complaints whatsoever. Certainly, the public was able to discern the information available and make the decision. This is the decision the people took and we are bound by it.
Deputy Byrne and others are right that we have to be careful that none of us second-guesses the Irish people. One of the reasons we published a general scheme, and one of the reasons many Deputies in the House called on me to do so, was so we would not be in this position after the referendum, whereby we would all look into our hearts and decide what the Irish people thought. We published it. Many people who campaigned for a "Yes" vote campaigned in the knowledge this would be the general scheme.
To respond to Deputy Daly, 12 weeks is the outer limit in the legislation and I accept this. I also accept the overwhelming majority of women will access termination much earlier than this. We have already seen this with women having to travel to other jurisdictions. Outside of that, the scenarios outlined by the Deputy would fall under the emergency provisions and it would not be appropriate for me to deviate further from that.
I want to put on record some of the Dutch law because it has been referenced so many times. The law in the Netherlands on the termination of pregnancy states a pregnancy shall be terminated not earlier than six days after the woman has consulted a physician and on that occasion discussed her intention with him or her. On its website, the Dutch Ministry of Health, Welfare and Sport states the law imposes a mandatory five-day wait time so the woman can think carefully about her decision.
That is language we are not using in Ireland. These matters can be kept under review. I hope that as the technology develops, as Deputy Harty said where there is electronic booking and the like, the issue of when the three days start could be considered. However, that is not how our health service works at present in terms of making appointments with a general practitioner and so forth. Obviously I support my amendments in terms of providing clarity about the two doctors and I cannot accept the other amendments.
Amendments Nos. 14 to 22, inclusive, are related, amendments Nos. 16 to 22, inclusive, are physical alternatives to amendment No. 15 and amendments No. 21 and 22 are consequential on amendment No. 15. As such, amendments Nos. 14 to 22, inclusive, may be discussed together.
I move amendment No. 14:
In page 9, to delete lines 10 to 12.
I will discuss amendments Nos. 14 and 18 together. These are the amendments I tabled on Committee Stage in an effort make the legal situation around what happens when a foetus becomes viable very clear. The legislation requires some thinking through to get there. A number of people whose views on the legislation vary widely have asked me for clarity. The Bill states that a termination is only allowable where the foetus has not reached viability. The direct inference from that is that once a foetus has reached viability, a termination of pregnancy, which is defined in the Bill as ending the life of the foetus, is no longer allowable under the legislation. That is my understanding but one must read through the Bill and make that extra logical step. I asked that clarity be provided in the explanatory memorandum and the Minister has done that.
Can the Minister confirm on the record whether my understanding is correct? Some people have a fear that a viable foetus could have its life ended, but my understanding is that this is expressly prohibited. In fairness to the Minister, he confirmed my understanding on Committee Stage but I am seeking confirmation again that it is correct. That understanding is that once a foetus has become viable, termination of pregnancy is no longer possible. If a pregnancy must be ended to protect the mother, the baby will be delivered and everything will be done to keep the baby alive in the same way as if it was a premature birth. We would not have a circumstance in which a termination of pregnancy would be carried out when a foetus had reached viability. In other words, a viable foetus would not have its life ended. I would appreciate if the Minister could tell me whether my understanding is correct, incorrect or correct with caveats.
I also ask the Minister to address the issue of viability. It is a matter I raised a good deal during the campaign and since the referendum. I am also seeking clarity here because it is a very important point. Page 9 of the Bill states that viability "means the point in a pregnancy at which, in the reasonable opinion of a medical practitioner, the foetus is capable of survival outside the uterus without extraordinary life-sustaining measures." Can the Minister clarify what "extraordinary life-sustaining measures" means? I believe viability is the point at which a child can survive outside the womb with or without medical assistance. In some cases it can be at 22 weeks and in others it can be at 23 or 24 weeks. It can vary according to the baby and the mother. It can also vary depending on which hospital one is attending. Obviously, a wide range of facilities is available in the Rotunda Hospital and the Coombe, whereas all that equipment will not be available to a baby born in a community hospital in a more rural area unless the baby is transferred to another hospital. Will the Minister again clarify for me that a viable baby, a baby who will survive outside the womb, will not be aborted?
A number of our amendments are included in this group so I will try to deal with them briefly. They largely relate to a requirement to consult the woman, ascertain the views of the woman and other issues in terms of serious harm and the issue of risk. It is quite a broad berth but I will be as brief as possible. First, in the Bill, as drafted, there is no requirement to consult the pregnant woman. That is very problematic and is not reflective of the rights based approach to the provision of women's healthcare. Amendments Nos. 15 and 16 seek to do this in part. Amendment No. 15 deals with the pregnant woman having a right to deem that the risk to her life or health is unacceptable. We have discussed this. Pregnant women are competent adults. We removed the eighth amendment to recognise bodily autonomy, and we should do that.
Examples were given at the committee of where a woman knows best. A doctor might think there is a risk to a woman's health but the woman might think, "I am in my early 40s, I have no other children, I desperately want a child so I want to take the risk and continue with the pregnancy even though it may result in a risk to my health." She makes that decision, whereas perhaps a younger woman with children at home and other responsibilities might feel that the risk to her health is too great a risk to take. There was much talk during the referendum campaign about trusting women and that was very much a sentiment of the electorate, but it is not reflected anywhere in the Bill. The amendment is an addition. It is not eliminating anything but allowing the voice of the woman to be put centre stage in the legislation.
Amendment No. 17 relates to the term "serious harm". We have discussed this a great deal so I will not labour the point. The term is not helpful given the climate we have come from on this issue. It is not women centred and the points made repeatedly to the committee were about the challenges in fixing risk and that it is best considered in a clinical setting, not defined in legislation as serious or severe. Many of the medical practitioners made the point that risk of the development of serious harm can fluctuate and in that context mothers can slip through the net. We cannot have that situation.
Amendment No. 19 is also important and deals with the issue of risk. It proposes deleting the word "avert" and substituting the word "reduce". This would ensure access to abortion if it reduces the risk to the woman's health even if it does not eliminate that risk. With the current wording the intervention would have to eliminate the risk. That is very dangerous so we must change the language. There will be scenarios where the pregnancy is a significant contributing factor to the risk to the health or life but not the sole determinant, and its termination may significantly mitigate but not entirely avert the risk. We must be very careful and amend this to support the medical practitioner's clinical judgment.
Good information has been brought forward by Lawyers for Choice on the legal sense of the word "avert", which Deputies will have read. Avert in the legal sense means prevent. That is a definitive view in the context of risk and harm. Lawyers for Choice give the good example that in situations where an abortion would reduce the risks to health but not fully avoid them, there is a legal risk that the pregnant person could be forced to continue the pregnancy on the ground that the need for aversion rather than reduction or considerable reduction had not been met.
Lawyers for Choice gave examples of conditions that might develop as the pregnancy continued where it would be safer for the person to have an early termination but where it did not quite tick that box. They suggest the ending of such a pregnancy at the earlier gestation would reduce but not eliminate the risk. In other words, under the current wording, a person who is at 14 weeks gestation and requires an abortion owing to a condition that might get worse during the pregnancy would meet the criterion of risk to health. As the pregnancy had not reached the point of viability, that box would be ticked, but the person might not meet the criteria in section 10(1)(c), as the abortion would not completely avert the risk; it would only reduce it. That is why we need to have the word "reduce" in order that the person would not have to travel to access abortion care. That is why we have put forward many of these amendments. If we do not have them, there is a risk the person who needs to access this service might have to continue to travel. Amendments Nos. 21 and 22 in this group for the purposes of discussion are really just technical amendments to facilitate amendment No. 15.
Witness after witness who attended the Joint Committee on the Eighth Amendment of the Constitution was very clear with us about the difficulties or impossibility of grading risk. It is different, depending on a person's circumstances, the number of children the woman already has and the person's state of health. Doctors, including Professor Sabaratnam Arulkumaran, Dr. Peter Boylan and Dr. Rhona Mahony, were very clear when they told the committee that it was very difficult, if not impossible, to grade risk in this context. We have referred a lot to the chilling effect of the eighth amendment on practice. The purpose of this legislation has to be-----
The noise is very irritating, a Cheann Comhairle.
The purpose of the amendments, as proposed, is to bring the legislation into line with what doctors want. In the case of amendment No. 16, it is to do what we said we wanted to do, that is, to trust women and put them at the heart of this legislation. It includes a reference to consulting the woman, where possible. In compiling the amendment we were cognisant of the possibility of a woman not being able to engage fully in that consultation, for whatever reason. It is simply states, "...where possible".
Amendment No. 17 references the term "serious harm". Again, for all of the reasons we have stated, it is not possible to grade harm and risk in that way and it will just continue the chilling effect.
On the deletion of the word "avert" and its substitution with "reduce", the reasons for it have been outlined and I do not propose to go over them. We have had a debate about including the word "access" which is only mentioned once in the offences section. It does not send a brilliant message about what we are trying to do. It is important to include a reference that explicitly puts the woman at the centre of the legislation. That would send a very clear message to those who voted "Yes" in what has been called a landslide result in the referendum. It would send a message to them that we had heard them, that we wanted to make the legislation as good as it could be and that we wanted it to deliver for those who need it.
I shall speak to amendment No. 20 which is very similar to amendment No. 19. Page 9 of the Bill contains the section which deals with "Risk to life or health". Section 11(1)( c ) contains the word "avert", as Deputy Clare Daly has outlined; perhaps other Deputies have, too. The use of the word "avert" is too absolute. I have spoken to the Minister about this issue before. Section 11(1)( c ) reads, "it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in paragraph (a)". However, what will happen if there is a judgment that a termination would not avert the risk and that one might need to mitigate, prevent or reduce the risk? I will not get hung up on whether the word is "reduce" or "mitigate". I believe the word "avert" is too absolute. It is too defining and doctrinal. It does not give scope and creates a nervousness in ensuring women can receive the service they need. I ask the Minister to reconsider. I am happy enough with the alternative amendment also because it is more or less a variation of what I am saying. It could cause issues if we do not change it. I do not see why the Minister would not look at the amendment and he might explain why. We are getting into dictionary territory, but I believe the word "avert" is too absolute. We need to allow the conditioning that will ensure women can be provided with the service they need and that those who provide it will not have to worry or be concerned about the doctrinal nature or the use of the word "avert".
This is a section to which the Minister could readily agree to amendments. People voted in the spirit of the amendments proposed by a number of Deputies. I shall speak to a number of the amendments in the group, particularly amendment No. 15 because I did not speak to it before. I raised the issue on Committee Stage, but I felt it was necessary to insert an new clause into the definition of when a person can access an abortion owing to a risk to life or health. Having two doctors was mentioned, which is fine. Doctors need to have rules about when they can intervene, but it had become obvious on Committee Stage that many were concerned about one aspect; that there was no voice for the person who was pregnant in the horrendously difficult situation where life or health was at risk. I proposed the insertion of the clause "(b) the pregnant woman deems the risk to her life or health to be unacceptable”. This is because the law, as it stands, mentions doctors, but it does not give a voice to the woman. This has echoes of the case of Savita when she asked for an abortion. It was a different situation because the clinicians had deemed that her life was not at risk, that it was only her "health" and that, therefore, they could not act. One can see, however, how quickly that situation developed completely and utterly into a scenario where her life was at risk. The fact that a woman like her was not listened to and that she had to go through that trauma resonated with the entire population. That was the filip or impetus for the abortion rights movement six years ago and it reinvigorated the campaign for the repeal of the eighth amendment to the Constitution.
Let us consider a situation where a woman lands in a conservative hospital where two doctors are to decide. Let us say there is a chilling effect of a law and they are very afraid in a difficult situation that a decision could be challenged. What if they say "No"? What will happen if the woman points out that she believes the pregnancy presents a huge danger to her health or life? She may have her reasons for saying so.
It may be because of a previous pregnancy, that they know nothing about how that evolved, or it could be for mental health. I am really concerned about this. It is very difficult to judge when somebody's mental health is such that there is a risk of them taking their life. However, two years ago, a teenager was sectioned by a psychiatrist; I do not know what happened since but it was reported that she was sectioned for a period because the psychiatrist had that power. That pregnant person who said that her life was at risk through suicide, due to which she should have been able to have an abortion, was not listened to. I think the Minister has to be cognisant that this is definitely something that people wanted changed in this country, where women themselves do not have their voices heard at all. I echo Professor Sir Sabaratnam Arulkumaran, who appeared at the Oireachtas Joint Committee on the Eighth Amendment of the Constitution and whose testimony was among the most memorable we heard at the time. He has dealt with these situations over many years and when he was asked by the committee members if it was possible to define a risk to health in law, he said it was not. People asked what we should do and he said the woman has to be listened to. She is the ultimate arbiter. It is disappointing that this is not being taken up in law. This clause is an attempt to rectify that.
On serious harm, it is disappointing that the wording was changed from what was discussed by the committee, from "risk" to "serious harm". Even taking out the word "serious" would have been helpful. The definition of what is serious is very broad. I agree with the point about the words "mitigate" and "reduce" and stress that the woman should be consulted where possible. If somebody is unconscious, they cannot be consulted. I really cannot understand how no amendments have been accepted all along the line on this one because this is not a case of the Minister breaching faith with the people who voted in the referendum.
I thank colleagues for their contributions. For Deputy Donnelly, I confirm that his understanding in respect of viability is correct. We discussed this on Committee Stage and doctors have already told us all through the Oireachtas Joint Committee on Health and through the Oireachtas special committee that they do not need this to be in law as it is the practice. However, we have put it in law anyway just to provide absolute, complete and utter clarity and reassurance to people. Our doctors are in the business of wanting to deliver babies and where a baby has reached viability, that baby will be delivered. I think the legislation is clear on that. We have also heard from the Institute of Obstetricians and Gynaecologists to the effect that it is already the practice in Ireland.
In response to Deputy Butler's question about what entails extraordinary life-sustaining measures, and indeed Deputy Donnelly's raising of this issue, I thank the Deputies for acknowledging that we have now put this in the explanatory memorandum, again to provide absolute clarity and certainty on what is meant in that regard. Deputy Butler is entirely correct; we have not put a timeline on viability and I think that is really important for the reasons she outlined. The committee has considered this as well. The timeline for viability can vary from woman to woman and from pregnancy to pregnancy. It should be a clinical decision and we should not have a rigid point in law. With medical advancements, viability may come earlier and earlier in pregnancy. It is appropriate that our clinicians are empowered to make those decisions. For the reasons I have outlined, I believe Deputy Donnelly's amendments, while well intended, have been dealt with through the clarification and the explanatory memorandum.
Deputies have proposed a number of amendments to insert a provision in the Bill whereby a termination of pregnancy may be carried out under section 11 in cases where the pregnant woman deems the risk to her life or her health to be unacceptable. I did say on Committee Stage that the law should not impose an obligation on a medical practitioner to carry out a medical procedure on the opinion of another medical practitioner if he or she does not agree with that opinion. While I appreciate that the Deputies wish to ensure that attention is paid to the woman's wishes, as do I, and indeed to her opinion of the risk to her life or health in this situation, I would go further and say that it would be wholly unacceptable to force a medical practitioner to arrive at that reasonable opinion based on his or her patient's view. The medical practitioner has to be able to satisfy him- or herself or the risk. That is the job with which clinicians are entrusted.
However, I think it is really important to say that medical practitioners should not decide on a course of treatment without reference to the wishes of their patient. As I have pointed out previously, the Medical Council's Guide to Professional Conduct and Ethics for Registered Medical Practitionersspecifies that a medical practitioner's responsibility to provide patient-centred care does mean treating patients as individuals, taking into account their personal preferences, goals and lifestyles, and acting with compassion and respecting patients' dignity. That is the obligation our doctors have signed up to under their regulator, the Medical Council.
Amendment No. 16 concerns the process by which a medical practitioner can ascertain whether a termination of pregnancy may lawfully be carried out. This is set out in sections 11 to 14, inclusive, of the Bill. Apart from emergency situations, which are covered in section 12, the Bill clearly sets out the steps which must be undertaken to assess termination of pregnancy in this country. The medical practitioner must examine the pregnant woman, form a reasonable opinion in good faith, certify that opinion and carry out the termination of pregnancy. In order to form a reasonable opinion in good faith, the Bill is clear that the medical practitioner is required to examine the pregnant woman. I thought long and hard about this on the basis of the very detailed discussion that we had on Committee Stage. A number of Deputies put forward different wordings to replace "having examined", for example with "following a medical consultation with" or "ascertain her views". There was quite a number of suggestions put forward. I have taken a lot of legal advice on this and I am advised that it is important that there is consistency between the various sections of the Bill from a legal point of view in order not to differentiate between them or cause unintended consequences in the way the Bill is interpreted. Given that there is a requirement for examination included in the Protection of Life During Pregnancy Act, leaving it out of the current Bill would result in a lessening of the clarity around the process, potentially causing undue confusion both for medical practitioners and for the woman. The important aspect of the requirement set out in the Bill is that medical practitioners providing the service and women accessing it are clear as to how a medical practitioner is expected to reach the reasonable opinion formed in good faith. It is therefore my opinion, heavily influenced by legal advice that I have received, that to remove this requirement would result in a lessening of the clarity around the process, potentially causing undue confusion for both medical practitioners and for women. This is something that I did insert in the Bill after publication of the general scheme on the basis of the legal advice I received in terms of providing clarity.
I also took a look at the issue in respect of the word "avert" rather than "mitigate". This wording, used in section 11, was considered at some length during the drafting of the legislation. The formulation set out in the Bill is based on the position approved by Government and set out in the general scheme published last March in advance of the referendum. The phrase "serious harm to the health of the pregnant woman" was used in the general scheme and has not been changed since. This is a phrase that, again, if we are sticking to what we said we would do in advance of the referendum, was there from the start of March. The qualification "serious" was included in section 11 to clarify from a legal perspective that the nature of the risk to a woman's health goes beyond the normal risk of harm to a woman's health which pregnancy would pose, even to a healthy woman. It was inserted on the basis of advice from the Attorney General. Pregnancy by its very nature does involve a risk to a woman's health. Evidence shows that an early termination of pregnancy, if done safely and according to best medical practice, will always - factually - pose less of a risk to a woman's health than continuing with the pregnancy to delivery. We did need to clarify in law what exactly we meant when we were talking about risk of harm. In addition, the wording used in this section makes it clear that the risk to a woman's health would not include, for example, poor health from a respiratory tract infection or another ailment that could harm a woman's health while she is pregnant but would not have sufficiently serious consequences for a termination to be justified on health grounds.
Deputies, particularly Deputy Kelly, sought on Committee Stage to replace the word "avert" with "mitigate". However, I have taken legal advice in respect of that as well. The language used in the Bill has regard to the need to clarify that the scale of risk of harm involved goes beyond that normally involved in pregnancy and that a termination of pregnancy is appropriate in cases where it can prevent rather than reduce or mitigate such harm. Under the terms of the Bill, a medical practitioner can take the decision in consultation with the woman to carry out a termination of pregnancy on the grounds that it would be appropriate in order to address that risk. Use of the word "appropriate" was deliberate to try to provide the sort of clarity that Deputy Kelly is looking for. Termination of pregnancy is not restricted to cases where the medical practitioner believes the termination is necessary in order to avert the risk. For these reasons, I am not in a position to accept these amendments.
The Minister read out the regulations in place for medical professionals about how to talk to patients and treat them with respect. Despite all that, we still had the issues with CervicalCheck all of which have been highlighted in the Scally report. The report the Minister commissioned into the transvaginal mesh issue also highlighted a similar issue. With the greatest respect to doctors, on whom we all rely, all those regulations were in place.
We are seeking to ensure the woman is at the centre and is consulted where possible. There is nothing outrageous about that amendment. Even though the regulations the Minister cited are in place, women are sometimes left out of very important decisions and information regarding their own care.
I move amendment No. 15:
In page 9, lines 14 to 20, to delete all words from and including “where” in line 14 down to and including line 20 and substitute the following:“where—(a) 2 medical practitioners, having examined the pregnant woman, are of the reasonable opinion formed in good faith that—or(i) there is a risk to the life, or of serious harm to the health, of the pregnant woman,
(ii) the foetus has not reached viability, and
(iii) it is appropriate to carry out the termination of pregnancy in order to avert the risk referred to in subparagraph (i),(b) the pregnant woman deems the risk to her life or health to be unacceptable.”.
John Brady, Tommy Broughan, Pat Buckley, Joan Burton, Mary Butler, Lisa Chambers, Catherine Connolly, Ruth Coppinger, David Cullinane, John Curran, Clare Daly, Pearse Doherty, Stephen Donnelly, Dessie Ellis, Kathleen Funchion, Michael Harty, Séamus Healy, Brendan Howlin, Billy Kelleher, Alan Kelly, Martin Kenny, Micheál Martin, Denise Mitchell, Aindrias Moynihan, Imelda Munster, Catherine Murphy, Jonathan O'Brien, Jim O'Callaghan, Kevin O'Keeffe, Louise O'Reilly, Frank O'Rourke, Jan O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Éamon Ó Cuív, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Thomas Pringle, Brendan Ryan, Róisín Shortall, Bríd Smith, Brian Stanley, Mick Wallace.
Bobby Aylward, Maria Bailey, John Brassil, Richard Bruton, Jackie Cahill, Dara Calleary, Joe Carey, Michael Collins, Marcella Corcoran Kennedy, Jim Daly, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Frances Fitzgerald, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Noel Grealish, Brendan Griffin, Simon Harris, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Seán Kyne, Marc MacSharry, Josepha Madigan, Charlie McConalogue, Helen McEntee, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Denis Naughten, Hildegarde Naughton, Tom Neville, Michael Noonan, Fergus O'Dowd, Michael Ring, Eamon Scanlon, David Stanton, Peadar Tóibín, Leo Varadkar, Katherine Zappone.
Amendment No. 17 in the names of Deputies Ruth Coppinger, Mick Barry, Paul Murphy, Catherine Martin, Clare Daly, Mick Wallace, Joan Collins, Louise O'Reilly, Bríd Smith, Gino Kenny, Richard Boyd Barrett and Catherine Murphy has already been discussed with amendment No. 14. How stands this amendment?
John Brady, Tommy Broughan, Pat Buckley, Joan Burton, Ruth Coppinger, David Cullinane, Clare Daly, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Séamus Healy, Brendan Howlin, Alan Kelly, Martin Kenny, Denise Mitchell, Imelda Munster, Catherine Murphy, Jonathan O'Brien, Louise O'Reilly, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Thomas Pringle, Brendan Ryan, Róisín Shortall, Bríd Smith, Brian Stanley, Mick Wallace.
Bobby Aylward, Maria Bailey, John Brassil, Richard Bruton, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Joe Carey, Lisa Chambers, Michael Collins, Marcella Corcoran Kennedy, John Curran, Jim Daly, Stephen Donnelly, Andrew Doyle, Bernard Durkan, Damien English, Alan Farrell, Frances Fitzgerald, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Noel Grealish, Brendan Griffin, Simon Harris, Michael Harty, Seán Haughey, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Billy Kelleher, Seán Kyne, Marc MacSharry, Josepha Madigan, Micheál Martin, Charlie McConalogue, Helen McEntee, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Margaret Murphy O'Mahony, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Carol Nolan, Michael Noonan, Jim O'Callaghan, Fergus O'Dowd, Kevin O'Keeffe, Frank O'Rourke, Éamon Ó Cuív, Michael Ring, Eamon Scanlon, David Stanton, Peadar Tóibín, Leo Varadkar, Katherine Zappone.
John Brady, Tommy Broughan, Pat Buckley, Joan Burton, Ruth Coppinger, David Cullinane, Clare Daly, Pearse Doherty, Dessie Ellis, Kathleen Funchion, Séamus Healy, Brendan Howlin, Alan Kelly, Martin Kenny, Denise Mitchell, Imelda Munster, Catherine Murphy, Jonathan O'Brien, Louise O'Reilly, Jan O'Sullivan, Maureen O'Sullivan, Eoin Ó Broin, Caoimhghín Ó Caoláin, Donnchadh Ó Laoghaire, Aengus Ó Snodaigh, Thomas Pringle, Brendan Ryan, Róisín Shortall, Bríd Smith, Brian Stanley, Mick Wallace.
Bobby Aylward, Maria Bailey, John Brassil, Richard Bruton, Mary Butler, Thomas Byrne, Jackie Cahill, Dara Calleary, Joe Carey, Lisa Chambers, Michael Collins, Marcella Corcoran Kennedy, John Curran, Jim Daly, Stephen Donnelly, Andrew Doyle, Bernard Durkan, Alan Farrell, Frances Fitzgerald, Michael Fitzmaurice, Peter Fitzpatrick, Charles Flanagan, Noel Grealish, Brendan Griffin, Simon Harris, Michael Harty, Seán Haughey, Danny Healy-Rae, Michael Healy-Rae, Martin Heydon, Billy Kelleher, Seán Kyne, Marc MacSharry, Josepha Madigan, Micheál Martin, Charlie McConalogue, Helen McEntee, Mattie McGrath, Michael McGrath, Joe McHugh, Tony McLoughlin, Mary Mitchell O'Connor, Aindrias Moynihan, Margaret Murphy O'Mahony, Eugene Murphy, Denis Naughten, Hildegarde Naughton, Tom Neville, Carol Nolan, Michael Noonan, Jim O'Callaghan, Fergus O'Dowd, Frank O'Rourke, Éamon Ó Cuív, Michael Ring, Eamon Scanlon, David Stanton, Peadar Tóibín, Katherine Zappone.
I move amendment No. 23:
In page 9, to delete lines 27 to 32.
As it stands, the Bill requires that a termination of pregnancy must be carried out by the certifying obstetrician. This is an unnecessary requirement without a clinical rationale. It runs contrary to normal procedure, such as rostering and annual leave, and could introduce barriers that cause pregnancies to exceed the time limit.
I am not in a position to accept the amendments. They propose to delete lines in sections 11 and 13, which require an obstetrician to carry out the termination of the pregnancy concerned or, alternatively, propose to allow the certifying obstetrician to make arrangements for the carrying out of the termination of pregnancy. Sections 11 and 13 both set out four steps which must be carried out by two medical practitioners. These steps are carrying out an examination, reaching a reasonable opinion formed in good faith that the requirements set out in the section have been fulfilled, certifying the opinion and carrying out the medical procedure. These steps are linked and follow each other sequentially. If there is no direct link between each of these steps, there is potential for confusion or for a woman in a crisis situation wishing to access termination of pregnancy to face additional barriers before she can access the service she requires.
In both sections one of the medical practitioners must be an obstetrician. Section 11 provides that the other medical practitioner must be an appropriate medical practitioner, which refers to a medical practitioner appropriate to the care or treatment of the woman in respect of the risk of the life or serious harm to her health. In section 13, a medical practitioner of relevant specialty is required, which refers to a medical practitioner registered in the specialist division of the Medical Council.
Both sections provide that the termination of pregnancy must be certified by the certifying obstetrician. In cases where both certifying medical practitioners are obstetricians, which will often be the case, the medical procedure to terminate the pregnancy may be carried out by either of the certifying obstetricians. This requirement for the termination of pregnancy to be carried out by one of the certifying obstetricians is necessary to ensure the process for accessing terminations of pregnancy on these grounds is clear for women and their medical practitioners. Importantly, it also ensures continuity of care for the pregnant woman and places patient safety at the heart of the service.
I have discussed this matter with Dr. Peter Boylan and others. I accepted earlier in the debate that an issue arises in respect of early pregnancy - there was no doubt about that - and it had to be rectified. This is a different situation.
This is a situation concerning health and life, and it is important there is a continuum of care. In addition, there is not a time period that needs to elapse, as there obviously is in early pregnancy.
The requirement for the procedure to be carried out by an obstetrician is necessary in recognition of the likelihood that the terminations carried out under these sections are likely to take place at a more advanced stage of pregnancy and may require more complex care, particularly in the view of the fact they may involve co-existing medical conditions. It is my Department's view, given the medical expertise contained within it, that from a patient safety perspective it is essential the highest possible standard of care is provided in these situations, although I know Deputy Daly and others will not agree with that, and that such cases are supervised and services delivered by the most highly experienced and qualified medical personnel, in this instance, consultant obstetricians. We do not want to do anything unintentionally that would in any way jeopardise a woman's health or lead to less than optimal outcomes.
Amendments were also proposed on Committee Stage to allow the certifying obstetrician to make arrangements for the carrying out of the termination of pregnancy. However, if the Bill did not require the termination under this section to be carried out by a certifying obstetrician, it could lead to a situation where one obstetrician certifies that, in his or her reasonable opinion, formed in good faith, the pregnancy concerned has fulfilled the requirements, but the woman could then experience a delay at a critical point if a second obstetrician must then be found to carry out the procedure. There is a duty of care, which is the point in these situations. In the worst-case scenario, a woman could be refused a termination by a second obstetrician on the grounds that he or she has not formed the same opinion as the obstetrician originally involved, and this would create a barrier to access for a woman when time is of the essence, and it could cause considerable distress or confusion.
I am of the strong belief the law should not impose an obligation on a medical practitioner to carry out a medical procedure based on the opinion of another medical practitioner, as we discussed earlier. I genuinely do not believe these amendments are required. I believe the unintended consequence would be potentially to reduce the optimum level of care that a woman would receive, considering that, under these sections of the legislation, we are talking about a woman who might be very sick and at an advanced stage of pregnancy. There is a duty of care on the obstetrician. There is also a situation where no time period needs to elapse, unlike in early pregnancy.
I will be withdrawing amendments Nos. 24 and 26, based on the clarification the Minister gave me earlier. However, I believe it is important the amendments were put down because they have brought about a clearer thought process and changes that have improved the Bill. The fact of the non-requirement for a time period makes a difference, as well as what has been explained to me in regard to the potential for the second obstetrician to have possibly formed a different opinion. There is also the law of unintended consequences. While I will withdraw both amendments, I am glad the Minister has seen fit to make changes based on these amendments, especially as this has improved the Bill as a consequence.
I move amendment No. 25:
In page 10, line 14, after “woman” to insert “and consulted with her, where possible”.
This is the same as the amendment we voted on earlier in regard to consulting with the woman, "where possible", so I am not going to repeat the point. Amendment No. 27 is somewhat linked and seeks to replace “examined” with “consulted with”. This is to ensure the person accessing an abortion prior to the 12 week deadline is not required to submit to a physical examination at the first appointment, which could cause unnecessary delay and be a barrier. Instead, it replaces this with "consulted with" as a better alternative. This does not mean the doctor would never examine her but it would not be a requirement in every case.
I will not go over old ground except to say the Minister outlined the regulations that are in place with regard to consultation, and I pointed out we still had the CervicalCheck scandal and all that went with that. Will the Minister confirm that this issue and the position of the woman will be dealt with in the regulations? As they stand, the regulations are obviously not good enough, so the Minister is open to some change on that or to discussing it with the medical community, which will be devising its own guidelines. I do not believe there is any disagreement with what Members are saying, which is that the person who is intended to be helped by this legislation is the person at the centre of it. I do not believe anyone will disagree with that and I would like to hear from the Minister that he has taken the point on board. While there have been similar amendments, I ask that this be addressed in some shape or form.
To be clear, the draft Bill I published in March, before the referendum, did not contain a reference to "examined". I want the Deputy to know that, from a policy perspective, I did not deem it to be necessary. From a legal perspective, and based on significant and deep consultations with the Office of the Attorney General, there was a very strong view that it provided a degree of legal clarity that was lacking without it. From a policy perspective, quite frankly, I would love this not to be in the Bill. I would love to be able to come here today and say we should delete the line containing "examined". However, the legal advice available to me is that that is not without risk and, of all the legislation we debate in this House, I do not wish to take any risks or chances with this legislation.
I am meeting the Medical Council in the morning and I will raise this issue with it because it is the regulator. The Deputy is right that the Medical Council has regulations which are there to be enforced, yet we still see a worrying degree of paternalism from time to time in the Irish health service, whether it is the issues the Deputy referred to earlier in regard to CervicalCheck, transvaginal mesh or more generally in terms of reproductive healthcare. I will raise it with the Medical Council and also with Dr. Boylan in the context of the clinical guidelines. We can certainly keep this under review, and I have no doubt we will be doing that. To be clear, the reason I voted the way I voted earlier was that the strong legal view is that the word "examined" should be there and that it provides greater clarity than "consulted with".
I move amendment No. 26:
In page 10, to delete lines 23 to 28 and substitute the following:
“(4) The obstetrician referred to in paragraph (a)of subsection (2)shall make such arrangements as he or she shall deem to be necessary for the carrying out as soon as may be of the termination of pregnancy to which the certification referred to in subsection (3)relates.”.
Based on discussions with the Minister, I will withdraw the amendment.
I move amendment No. 27:
In page 10, line 31, to delete “examined” and substitute “consulted with”.
On the basis that the Minister will consult the medical profession and given the way the debate has gone, I will withdraw the amendment.
I move amendment No. 28:
In page 10, lines 32 and 33, to delete all words from and including “that” in line 32 down to and including line 33 and substitute the following:
“that—(a) the pregnancy concerned has not exceeded 12 weeks of pregnancy, and
(b) a termination of the pregnancy concerned is not being sought because of the sex or race of the foetus concerned or because of any condition or disability affecting the foetus concerned.”.
I will speak first while Deputy Mattie McGrath prepares his speaking notes. The amendment deals with our concerns that the pregnancy concerned has not exceeded 12 weeks of pregnancy, and that the termination of the pregnancy concerned is not being sought because of the sex or race of the baby concerned or because of any condition or disability affecting the baby concerned.
It was Deputy Mattie McGrath who introduced me and others to a person who had survived an abortion. We met that person and it was deeply concerning to all of us at the time. The story that lady had to tell us was frightening, and that is where the amendment came from in the first instance. Quite simply, when one is told of a factual event that happened in a person's first hours or minutes of life, it is sobering.
It had a profound effect on me and some of my colleagues who were also deeply affected by what we were told.
I hope that people here tonight and looking in will understand that we made no effort to delay this Bill in any shape, make or form and the number of amendments should show that also. I am happy to make some brief remarks about these amendments. Given the gravity of what we are dealing with here I hope a certain latitude will prevail in the discussion but I do not see it. I am not holding out any great hope that any of our amendments will be accepted. The Minister set his face against any amendments we put down in good faith on Committee Stage. I thank the Ceann Comhairle for his intervention last night when we were being told that we were doing all kinds of things and that we had ulterior motives in putting down amendments. Every Deputy is entitled to table and move amendments. I am glad that none of that occurred tonight and that we have had a reasonable and respectful debate.
Every Deputy has a duty with a Bill like this to peruse the Bill and take advice on it, look at international practices and try to sanitise the ferocious nature of this Bill. That is merely what we were doing with our amendments. I do not want to be critical of the Bills Office but there was a problem with it on several fronts regarding names on the amendments. One or two of them were sent in without the names of people who did not want to be on them but then they were added. It is a pity because it is a very fraught issue and people have reasons for not supporting an amendment or for supporting it. The Minister said he was not going to break his word and his commitment given to the people during the referendum. When the three-day period was discussed I refrained from getting involved and commenting on it. We know that came from the Minister's colleague who told us all that it was going in for good reasons. The Minister described it in other terms on Committee Stage.
Dr. Peter Thompson told the Oireachtas Joint Committee on the Eighth Amendment of the Constitution that 40 years ago the Parliament in Westminster passed a Private Members' Bill ensuring that doctors who performed abortion under certain circumstances would not be performing an unlawful act. Despite the fact that this was amended by the Human Fertilisation and Embryology Act 1990 all subsequent attempts to have the Act amended have failed. I believe the same will happen here in respect of positive life-affirming amendments. That is of serious concern.
The most striking aspect of the Bill and indeed of the majority of the amendments before us is the total absence of any positive reference to the unborn child. That is what I feel so strongly and passionately about, as do many people who voted. They had the heads of the Bill but they had no feeling of what the outcome would be or what legislation would come before us. They voted to repeal the eighth amendment and rightfully handed the duty of legislating to the Oireachtas Members elected for the time being. I am privileged to be one of them for the moment.
I am doing my best to ensure the Bill is sanitised and reflects the people whatever which way they voted. We had many debates, interaction, canvassing and everything else in an honest effort to engage, to find out and imagine what might be put before us after the eighth amendment was removed. People on the Government side like to think about polls. I am not a big man for polls but in the exit poll 44% who voted "Yes" did not realise they would be paying for abortions and did not want to be paying for them.
The protections afforded to the unborn child and mother which were guaranteed by the eighth amendment no longer remain in place. Tá siad imithe. They are gone. The people have that on their hands. They voted for that and we have to accept democracy.
That being said, the heads of the Bill, as they were presented to us, and indeed the Bill before us now, should not be seen as a blank slate from which we can draw the most extreme conclusions. Our laws in this area and the amendments which seek to modify them ought to express the guiding and deepest principles of our nation. That is where we are in 2018. I see nothing in the majority of the amendments before us which gave expression to that view. They are by a significant majority devoid of any reference to the right of the unborn child to die a painless death where possible. Deputy Michael Healy-Rae is right, we did meet several people who travelled here to educate us, whose lives were intended to be ended in the womb by abortion but they survived by some miracle. They were aborted and left to die but thankfully in both cases that I met a nurse or a paramedic had compassion and offered some sustenance and they are now adults and have families themselves.
Those experiences left a deep impression on me and on anyone who cares to listen. We know that when they tried to speak here and book hotels to express their views the hotels were picketed and threatened. That is water under the bridge now but it is important to recognise that. No matter what happens here, or when this Bill is finished, and we are not delaying it by one minute, history will record what we said and did and how we voted. Only time will tell what that history will be. We know the history in England and America, safe legal and rare, but there have been millions of abortions. It is a slippery slope.
Amendment No. 28 deals with the possibility of abortion on the grounds of disability and in particular for conditions such as Down's syndrome. For all the wrongs that have taken place in this country over the past century we can be proud of how we cherish Irish citizens born with Down's syndrome. This legislation looks as if it will bring an end to this because all the European countries with similar liberal abortion regimes have seen the number of people born with Down's syndrome dwindle to almost zero. In the UK, 90% of children diagnosed with Down's syndrome are aborted and in Denmark that number is 100%. There is now a test which can screen for Down's syndrome with 99% accuracy at ten weeks, two weeks before the 12-week limit for abortion on demand under this legislation.
In an article in the Irish Independenton 24 May, the day before the referendum, the Minister for Health said the Government specifically excluded disability as grounds for abortion in the legislation. In a post on a Twitter account during the campaign the Minister for Arts, Heritage and the Gaeltacht, Deputy Madigan, reproduced a graphic design from Fine Gael's head office to explain the Government's abortion proposal stating that termination on grounds of disability is prohibited. Both these statements were absolutely and totally false as it stands and there is no provision in the Bill that prohibits abortion on the grounds of disability. As abortion campaigners admitted during the referendum campaign and, as has been said many times in the House, the availability of screening tests can detect a range of disabilities and genetic abnormalities as early as the third week of pregnancy. There is nothing in the Bill to in any way prohibit children who test positive for these conditions being aborted within the 12-week time limit. The Ministers, Deputies Harris and Madigan, seemed to agree on prohibiting abortions on the grounds of disability during the referendum campaign. Why do they not include a clear provision to that effect in the legislation?
I strongly support amendment No. 28 which seeks to do so and the Government should do likewise, otherwise it will have sold a pup to the electorate on this issue. If the Minister for Health, Deputy Harris, is a man of his word, as he stated on 24 May, he would specifically exclude disability as grounds for abortion in the legislation. He would support this amendment.
I will be brief as I do not wish to take up more time on the amendment than is necessary. However, the suggestion in subsection (b) of the amendment that someone would seek to procure an abortion on the basis of race or sex is an abhorrent one to make in the Chamber. It is deeply insulting to any woman who finds herself in that situation. The Deputies who have signed their name to the amendment need to explain why they would even suggest that any woman would make that decision. There is no evidence to support that. I have heard some incredible things over this entire process since the committee and through the opportunities to speak here and the engagements we have had outside the Chamber through the media and other fora. However, this is at the top of the pile in terms of how insulting it is to women. I will not support the amendment and those who do will find themselves in a lonely place. That needed to be recorded.
Yes, but it must be stated that it is a well-known statistical fact that in other countries abortions take place due to the medical condition of the unborn child. To suggest that is not the case is non-factual. There was an attack on people who put forward an amendment, which they are perfectly entitled to do, and the people who signed their names to this were questioned. I would not dare to question anyone else in the Chamber because of what he or she signed his or her name to.
There is a dispute here about whether abortion happens on the basis of gender. It is estimated that there are 100 million missing women in the world today due to gender selective abortion and infanticide. To give Deputy Chambers some of the facts in that regard, I note that in China the sex ratio for the generation born between 1985 and 1989 was 108 men for every 100 women. By the generation born between 2000 and 2004, it was 124 for every 100 women. In some provinces, it is at unprecedented levels of 130 men for every 100 women. In countries like Taiwan, South Korea, Pakistan, India, Armenia and Azerbaijan, they are also having major problems with this. In India, there is a radical gender ratio divergence because for economic, social and cultural reasons, unfortunately and shockingly, they favour sons over daughters. These facts can be seen clearly by anyone who takes a second or two to investigate them. People might think this only happens in these particular countries, but it is happening in western countries also. I am happy to let Deputy Chambers understand that a lecturer in statistics at Imperial College London says that among immigrant groups from these countries, there is clear evidence of a trend and that the only reliable available explanation consistent with a statistically significant gender shift observed in the census data is gender selective abortion.
It is shocking to me that this could or would happen, yet it is happening in western countries. It is happening in Canada, Britain and the United States of America. Deputy Chambers should realise that it is happening to such an extent that Labour Party MP Naz Shah, the shadow women and equality minister in the United Kingdom, has called for a ban on gender selective abortion in Britain. The Labour Party in Britain is no bastion of pro-life views but it knows non-invasive pregnancy testing at nine weeks makes it possible to identify the gender of the unborn child and to have an abortion on that basis. The Labour Party knows that is happening in Britain. I do not think Irish people are morally superior to British people. We live in a globalised society and there are many people from these cultures living in Ireland who share the views people have in India and China. It is clear that this is possible under the legislation. It is clear in the legislation that this is legal. All I am saying is that we should follow the advice and example of the British Labour Party and lay down a clear marker that gender selective abortion will not be allowed here.
I refer to disability in respect of which the following is very important. In an earlier contribution, the Minister, Deputy Harris, said it was important for the Government to stick with the general gist of the debate around the referendum. The Minister noted that before the referendum, people were saying "Don't trust politicians because when they legislate, what they introduce will be radically different to what they articulated in advance of the referendum." In February, the Minister said there would absolutely not be a right to have an abortion on the basis of disability in the Bill. He said that would explicitly not be allowed. Non-invasive pregnancy testing at nine weeks is available in Ireland and the results are available within three days. That will tell one what disability may be present within the pregnancy.
It is absolutely practical and feasible under the legislation as drafted for a person to have an abortion on the basis of disability. It allows for it. This is one of the issues that motivated many people on our side of the debate when the referendum was happening. I was at a public meeting in Kerry on Monday and two women who had voted "Yes" told me they had done so on the understanding that under the legislation, it would be explicitly illegal to have an abortion on disability grounds. It is not. It is explicitly allowed because an abortion without indication is allowed up to 12 weeks. By definition, that allows it to happen.
People will say this will not happen in Ireland. However, we need only look at our nearest neighbour where there is an organisation called Don't Screen Us Out. I ask Members to think about that for a second. In the 21st century, people with disabilities in Britain have come together to create an organisation with that name to ask able-bodied people not to select out people with disabilities before birth. To quote the statistics from a government health body in Britain, the birth rates for children with Down's syndrome are falling by approximately 13% because 90% of children diagnosed in the womb with Down's syndrome are, unfortunately, aborted. It would be a very strong message for us to send if we say we will protect people with disabilities 100% under this legislation. We should simply provide in the Bill for the promise the Minister made before the referendum took place.
If Members are looking for another example from a European country, the minister for health in the Netherlands was asked what would happen if the right to choose led to a situation in which no more children with disabilities were born. The Minister said "Well that is something we would have to get used to." That is a startling situation. Anyone who believes a gap should be left in the legislation in this regard must look into his or her own heart and ask whether that is fair. There are people on the other side who are decent and who want abortion rights. There are decent people whose instinct is not to restrict those in any way at all because they believe access is so important. However, all I say is that in these two situations, we should be able to take a step towards each other to provide some protection.
When it comes to termination on the grounds proposed - race, gender and disability - the Bill clearly makes it an offence that carries a prison sentence of up to 14 years and it does so by stating the starting position is that it is an offence to procure and aid. It is a wide ranging group of offences, except in certain circumstances, none of which include race, disability, gender or anything else to do with the condition of the foetus. After 12 weeks, no one can seek or be involved in a termination in any way on the grounds set out in the amendment - disability, race, gender or anything else, other than what is stated very clearly in the legislation - a fatal foetal abnormality, a risk to the life of the mother or a serious risk to the health of the mother. Anything other than that carries a potential prison sentence of 14 years. That is what the Bill states and it could not be stronger in disallowing terminations on grounds of disability.
There is a counter argument that it does not state before 12 weeks and that, theoretically, a woman could undergo screening and decide that she will have an abortion on those grounds. Let us think that through. The figures used for China, Pakistan and India were related to a culture in which terminations were sometimes sought, outrageously so, if the data are correct, where the foetus was a girl.
That is the allegation being made to which I am responding. Let us play it out. What would happen if we were to pass this amendment is that if there were screening to determine gender, the law would state something along the lines that a woman could have a termination if the foetus was male but could not if the foetus was female. That would be the essential implication. If there were screening for a disability, the law would state that if the foetus was deemed to be healthy, the pregnancy could be terminated, but if the foetus was deemed to have a disability, it could not be terminated. That is what would actually happen.
Let us talk about race. If we were able to screen to determine the race of the foetus, there would be a situation where if it was of a certain race or races, a termination would be allowed, but if it was of a certain other race or races, it would not be allowed.
There are people who passionately believe in the protection of life during pregnancy and I am not casting aspersions on anybody. The assertion that the Bill allows for termination on all of these grounds is incorrect. It could not be stronger in disallowing it and doctors to whom I have spoken about amendments such as this have said they get the issue and that the Bill states very clearly that a termination is not allowed, except in the four areas I mentioned. They have said the moment a grey area was introduced such as a hierarchy of permissable grounds, there would be a question about which gender or disability, for example. The question would be raised as to whether it was Down's syndrome, an intellectual or a physical disability. That would start to make life very grey and make the legislation very confusing. Several doctors have said that in their view it would weaken protections which disallow termination on the grounds of disability because it would start a conversation about whether a termination could be carried out, depending on the disability. Ultimately, we cannot live in a world where any woman would ever be in a situation before 12 weeks where she would be told that she could have a termination if it was one gender but not the other, that she could have a termination if the foetus was healthy but not unhealthy, or that she could have a termination if it was of a certain race but not of a certain other race.
That is not something that could ever be implemented in our society. For that reason, I will oppose the amendment. I am not suggesting for one second that it was written in a mischievous way, but its implications would be profoundly bad in terms of what would actually have to happen in reality were it to be passed.
For those who do not believe termination should ever be allowed on grounds of disability and so forth - I agree with that position - I believe the amendment would muddy the waters and doctors have said as much. They get it and say the legislation is crystal clear, that termination is only allowed in the four categories laid out in the Bill. Regardless of which side one is on or where one is in between, the practical implications of the amendment in passing into law and being implemented would be grotesque. Ideally, it should be withdrawn, but certainly it should be opposed.
Deputy Donnelly has definitely misconstrued the amendment. He has his own interpretation which he is entitled to have, but it is certainly wrong. What we are looking for is reasonable and fair. The Minister gave himself a pat on the back earlier for sticking to what he had promised the people before the referendum. He did state abortion would not be allowed on the grounds of disability. We just want to have safeguards and that is all we are asking him for.
We hear the Government talk about how inclusive we are becoming as a society and how we are giving equality to all of the people. We have seen the United Nations Convention on the Rights of Persons with Disabilities ratified after a scandalously long period of ten years, yet here we are unwilling to provide any safeguard to protect the lives of unborn children who may have disabilities. I find that very hard to stomach.
As somebody who came from the education profession, who strongly and firmly believes in treating every child equally, who strongly believes in inclusion in society and inclusive schools and who strongly believes in giving everybody a fair chance, what we are saying to society? Are we saying some people deserve to live and others do not because that is the way it appears? This is a fair and reasonable amendment and it is beyond me how the Minister could overlook it.
On gender selection, I remember some months before the referendum being absolutely shocked after I had discussions with a couple of women. They told me that when they had been expecting their babies, they had gone to well known maternity hospitals in Dublin and received a high standard of treatment, for which they were very grateful. However, they mentioned to me that one of the ladies had asked to be given information on the sex of her baby and had been told quite firmly by a nurse that they could not give her that information. When she asked why, she was told that a high number of women who had asked the sex of their baby had not returned to the hospital. We can draw our own conclusions from this. I am just stating I would be worried about it. We cannot say with absolute certainty-----
I genuinely remember being shocked to the core and we can draw our own conclusions, but we cannot say anything with absolute certainty. As we know, this nation includes all cultures. We are inclusive as a society. We do not know and cannot say with absolute certainty that somebody who goes into a hospital will not ask for or want an abortion on grounds of gender. We have to make sure there are safeguards because there are human and civil rights.